KAMORU AIYE TIJANI v SAMISIDEEN AKINWUNMI (CA/L/132/87) [1989] NGSC 21 (14 June 1989)

In The Court of Appeal

(Lagos Judicial Division)

On Thursday, the 15th day of June, 1989

Suit No: CA/L/132/87

Before Their Lordships

 Between

 And

AKPATA, J.C.A. (Delivering the Leading Judgment): This appeal relates to land matter. One of the legal issues raised however is whether a ground of appeal in respect of an interlocutory ruling against which there was no separate appeal can be argued without leave of court along with other grounds relating to the final judgment.

In the High Court of Lagos State, the plaintiff who is the respondent in this Court claimed per his writ of summons from the respondent, now the appellant, for (1) possession of a parcel of land which situate at Moricas Area, Oniwaya Road, Agege, delineated in Survey Plan No. D213 dated the 26th of July, 1971; (2) perpetual injunction restraining the defendant, his agents, servants and privies from remaining on or continuing in occupation of the said parcel of land.

The plaintiff and five other witnesses testified in support of his claim while the defendant and four witnesses adduced evidence to rebut the case of the plaintiff. The parties did not appear to claim to derive title to the land in dispute from the same source. It was the plaintiff's case that one Yesufu Adegboye Oseni was the original owner of the land in dispute and that it was a part of a larger tract of land which he, Oseni, sold to one Alhaji A.S. Jinadu, who in turn sold two plots (plots A & B) measuring 100ft x 100ft on 5th April, 1971 to the plaintiff as evidenced by the Deed of Conveyance, Exhibit "A." The plaintiff fenced the two plots round with cement blocks and built on Plot" A." Apart from using plot "B" for gardening and horticultural farming, he also dug a well therein. In July, 1975, the defendant and his agents broke into plot "B" and started to erect a building thereon which the defendant eventually completed erecting.

It was the case for the defendant that he took a leasehold of the land, that is, plot "B", from A.G. Olalabi Sulu as far back as 3rd February, 1961 but in the name of his brother Rasaki Rallutu, D.W.3. The Deed of Lease in respect of the transaction was however not executed until 20th April, 1976.

At the close of the case of the defendant and at the address stage learned counsel for the defendant orally applied to the court to re-open the defence in order that "a vital document pleaded in paragraph 7 of the Statement of Defence be tendered."

Learned counsel speculated that failure to tender the document could have been due to an oversight by counsel who was originally in the case.

Learned counsel for the plaintiff opposed the oral application on the ground that notice relating to the application had not been given him and that failure to tender it was not due to "omission or inadvertence."

In his ruling, the learned trial Judge gave four reasons why the application must be rejected and went on to refuse it. Following the address of counsel, in a reserved judgment delivered on 2nd November, 1981, the learned trial Judge concluded that the Deed of Conveyance tendered by the defendant dated 20th April, 1976, Exhibit "F", "was made for the purpose of this litigation and does contain erasure which made the whole document suspicious" and that the document was "an after-thought." He was satisfied that, "the evidence by the plaintiff and his witnesses are true in all essential details" and entered judgment for the plaintiff as claimed by him in his writ of summons.

Against the judgment the appellant filed his notice of appeal based on two grounds complaining of (1) the decision being "unwarranted, unreasonable and cannot be supported having regard to the weight of evidence"; and (2) a misdirection by the learned trial Judge by refusing the defendant leave to re-open his case by calling additional witness to tender a document vital to the defence.

In this Court the appellant filed an amended notice of appeal consisting of seven grounds, inclusive of the two original complaints. In the appellant's brief seven questions were formulated as issues for determination. They read:

"(1) Whether in the circumstances of the claim for possession and injunction, the pleadings and evidence in support of the case with the issues raised thereon, the learned trial Judge was right in giving judgment for the plaintiff for possession and injunction.

(2) Whether the learned trial Judge was right in Law in refusing to reject or expunge Exhibit "F" from his record having found that it was prepared for the purpose of the suit before him.

(3) Whether the learned trial Judge properly directed himself by making comments on the credibility of Exhibit "F" which he bad earlier on ruled that was prepared for the purpose of the case.

(4) Whether the learned trial Judge was right in refusing or disallowing counsel to further address him on the admissibility of Exhibit "F" having given such an undertaking during the trial and then proceeded to conclude that it was prepared for the purpose of the substantive suit.

(5) Whether the learned trial Judge was right in admitting Exhibit "A" in evidence the document being one which purported to have transferred land to the plaintiff in Lagos State without being registered.

(6) Whether the learned trial Judge was right in allowing the fact that the piece of land in dispute was not sufficiently described on receipts of payment i.e. Exhibits E-E7 tendered by the defendant to affect his reason for giving judgment in favour of the plaintiff when they were receipts for payment of money only.

(7) Whether the learned trial Judge made a correct approach to the evidence led by the defendant before considering that of the plaintiff."

Although ground 2 of the original grounds and ground 6 of the amended grounds relate to the refusal of the trial Judge to allow the defence call a witness to tender the document, the issue raised by these grounds has not been made a question for determination. Arguments were however proffered in respect of the grounds in the appellant's brief of argument.

Four issues were canvassed for determination in the respondent's brief.   

They read:

"1. Whether a party who was in possession and whose possession was ousted before action instituted cannot maintain an action for repossession and injunction and whether he is of necessity obliged to sue only for trespass and injunction. This is the issue involved in the amended ground 1.  

2. Whether Exhibit A (tendered by the plaintiff) and Exhibit F (tendered by the defence) were wrongly admitted. If so whether the wrongful admission of these Exhibits are fatal to the Plaintiffs case. This is the issue involved in grounds 2, 3 and 4 of the Amended Grounds of Appeal.

3. Whether it is competent on the appellant to complain of an interlocutory decision relating to the ruling of the application to reopen his case when appeal thereon was not filed within the statutory period of fourteen (14) days and no leave to appeal on the same has been obtained. If it be competent, whether it can be said that the learned trial Judge wrongly exercised his discretion in refusing the application to re-open the defence in the circumstances. This is the point in issue in the amended ground 6.

4. Whether the omnibus ground as formulated is proper. If so whether on the totality of the evidence the plaintiff has discharged the onus of proof."

I think the issues as framed in the respondent's brief have succinctly projected the issues arising in this appeal.

At the hearing of the appeal on 16th March, 1989, neither the appellant nor his counsel showed up. Being satisfied that the appellant was duly served with the notice of hearing and since a comprehensive brief of argument and indeed also a reply brief have been filed on behalf of the appellant, his appeal was treated as having been duly argued. The respondent's counsel, Mr. Adegunle, adopted the respondent's brief and briefly highlighted a few points.  

It was submitted in appellant's brief that the Judge ought not to have given judgment for possession in favour of the plaintiff/respondent since it was his case that he had been in possession. He cited a number of authorities to show that where it is the case of the plaintiff that he was always in possession before the defendant entered the land a claim for recovery of possession is inappropriate because a trespasser does not by the act of trespass secure possession in law. The defendant can be liable for damages in trespass and to an order of injunction (See Akanni & Ors. v. Adedeji & Ors. (1978) 11-12 S.C. 13 at page 28-29).

There is however the case of Aromire v. Awoyemi (1972) 1 All N.L. R. (Pt.1) 100 at page 108, where G.B.A. Coker, J.S.C., delivering the judgment of the Supreme Court had this to say:

"A claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser. On the other hand, a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land. Hence, in the present case the claim for trespass and for recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was."

In effect, it seems to me that a plaintiff who has been dispossessed in actual fact, although de jure he is still deemed to be in possession, has two options open to him, either to sue for trespass or to sue for possession. He cannot however claim for trespass and possession at the same time. In the case of Fagbemi Akana v. Moses Okunade (1978) 3 S.C. 129 at page 137 cited by learned counsel for the respondent, Obaseki, J.S.C., adverting to the narrow and historical distinction and similarity between trespass and possession observed thus at pages )37-139:

"As regards the question of recovery of possession, possession in itself is a good title as against everyone except the true owner and if one who has been in possession is wrongly dispossessed, he is entitled to recover possession against the wrongdoer notwithstanding that the true title may be shown to be in a third person (See Halsbury's Laws of England 3rd Ed. Vol 32 paragraph 662 at page 375) ...

An action for recovery of land is in essence an action of trespass. 

In Bramwell v. Bramwell (1942) 1 K.B. 370, Goddard, L.J. (as he then was) said dealing with the historical origin and import of the action for recovery of possession said:

"An action for recovery of land is the modern equivalent of the old action of ejectment. That action was a personal action and sounded in damages. Then in favour of this class of remedy, the courts determined that the plaintiff was entitled to recover as collateral and additional relief possession of the land itself (see Stephen on Pleading 3rd Ed. p. 12) but it was in fact always a specie of the action of trespass. "

It was the case of the plaintiff/respondent, and it was believed by the learned trial Judge, that the appellant evicted the respondent by what may be termed brute force. The respondent to my mind in the circumstances was entitled to sue for possession. The submission in the appellant's brief that the learned trial Judge ought to have dismissed the claim for possession is totally misconceived.

Learned counsel then referred to section 15 of the Land Instrument Registration Law of Lagos State Cap 64 which states:

"No instrument shall be pleaded or given in evidence in any court of law as affecting any land unless the same shall have been registered."

He canvassed that Exhibit" A", the Deed of Conveyance executed in favour of the respondent was not duly registered and that counsel could not by consent tender it. He submitted that this Court should expunge it from the records on the authority of A. A. Alade v. S.J. Olukade (1976) 2 S.C. 183 at 188 and a host of other cases.

Obviously, it is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible. It is however the submission of learned counsel for the respondent, while admitting that Exhibit "A" was not registered, that it is an agreement to lease. He submitted that it was not tendered as a document of transfer of interest in land and conceded that it could not have been admitted for that purpose because of its non-registration. He however argued that the exhibit is admissible to show that the plaintiff/respondent entered into possession under an enforceable agreement. In this regard, learned counsel cited the case of Dr. Joseph Okoye v. Dumez Nigeria Limited (1985) 6 S.C. 3 at pp. 11-12; (1985) 1 N.W.L. R. (Pt.4) 783, which I think is apt. In that case in his lead judgment, Bello, J.S.C. (as he then was) had this to say:

"I accept the submission of Chief Onyiuke that Exhibits "E" and "F" are instruments within the meaning of Section 2 of the Law and are registrable. I do not however agree with his contention on the legal effect and consequences of their non-registration having regard to the facts and circumstances of this case.  

It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. 

A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent: Savage v. Sarrough (1937) 13 N.L.R. 141; Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222; Fakoya v. Shagamu (1966) 1 All N.L.R. 74; Oni v. Arimoro (1973) 3 S.C. 163; Bucknor-Maclean v. Inlaks (1980) 8-11 S.C. 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 14th April, 1985, unreported yet; (1985) 2 N.W.L.R (Pt.6) 167.

It follows from the foregoing that the 1st respondent', lease under Exhibits "E" and "F" was as good as if the instruments had been registered."  

Also in the case of Obijuru v. Ozims (1985) 2 N.W.L.R. (Pt. 6) 167 at pages 179-180, the Supreme Court, also per Bello, J.S.C. (as he then was) held that where a purchaser of land or a lessee is in possession of the land has paid the purchase price to the vendor or has paid the rent to the lessor as the case may be, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. Learned counsel for the appellant also urged us in his brief of argument to hold that the learned trial Judge ought to have expunged from the records Exhibit "F", the Deed of Conveyance, tendered by his client "the moment he found that it was prepared for purposes of this action in view of section 90(3) of the Evidence Law of Lagos State." Learned counsel also made the point that during the trial the learned trial Judge gave an undertaking that counsel could be heard further in respect of the objection by counsel for the plaintiff to the admissibility of Exhibit "F", but failed to receive further arguments. Learned counsel stated that contrary to expectation, the trial Judge expressed the satisfaction that Exhibit "F" was made for the purpose of this litigation and does contain erasure which made the old document suspicious." Counsel then submitted that it was obvious that the learned trial Judge's adverse comment on the document which ought to have been expunged was one of the points which affected his mind in giving judgment in favour of the respondent.

I find it difficult to appreciate the submission of learned counsel for the appellant. As learned counsel for the respondent put it, "the least that can be said of this ground is that it is absurd." The complaint for failure to expunge Exhibit "F" should not come from the appellant. As evident in the case of Ezeokeke v. Uga & Ors (1962) 1 All N.L.R. 482, a person who pleaded and tendered a document during trial is stopped on appeal to object to the trial court's consideration of the document in reaching a decision. I do not see how expunging Exhibit "F" from the records would have improved the chances of the appellant in the case. Expunging Exhibit "F" would not have prevented the learned trial Judge from making the comments he made. 

Indeed, the comments would form the basis for expunging it.

The position however is that section 90(3) of the Evidence Act or Law is inapplicable. By this Section any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to fact which the statement might tend to establish is inadmissible in evidence.

Sub-section (4) provides that "a statement in a document shall not be deemed to have been made by a person unless the docu