Judgement of the Court

Delivered by

Andrews Otutu Obaseki. J.S.C.

 On the 9th day of July, 1990. I dismissed this appeal after reading the briefs of argument filed and served by the parties together with the record of proceedings in the court below and the judgment of the court below and hearing counsel to the parties in elaboration of the briefs filed. I then reserved my Reasons for the Judgment till today. I now proceed to give them.

The appellant was the plaintiff and the respondent the defendant in an action filed and instituted in the High Court of Lagos State in the Lagos Judicial Division Holden at Lagos in which the plaintiff claimed against the defendant

i.      declaration that the plaintiff has a statutory or customary right of occupancy in ALL THAT PIECE OR PARCEL OF LAND, situate and lying -and being at No.27 MAFOLUKU VILLAGE, OSHODI, IKEJA DIVISION OF LAGOS STATE which with its dimensions and abuttals is more particularly described and delineated on the PLAN filed in this suit and thereon EDGED 'PINK' and that she is entitled to a statutory or customary certificate of occupancy thereof;

ii.     For the sum of N1000.00 (One thousand Naira) being general damages for the trespass committed on the said land by himself, his servants and/or agents, on or about December, 1979;

iii.     For an injunction restraining the defendant, his servants and/or agents from entering upon the said land and/or from committing further acts of trespass thereon.

The suit was filed on the 22nd day of May, 1980. On completion of the pleadings in the High Court the matter was listed before Omololu-Thomas, J. But before the completion of the hearing, Omololu-Thomas, J., was appointed a Justice of the Court of Appeal. Hearing de novo was then commenced by Akin Oshodi, J., to whom the matter was transferred. On completion of the hearing, the learned trial Judge, in a well considered judgment dismissed the claim. In the concluding paragraphs of his judgment the learned trial Judge found and concluded as follows:

It is my finding that the plaintiff has failed to prove that she was a bonafide purchaser of the legal estate of the disputed land without notice of the prior equitable interest of the defendant. If she had inspected the land at the time of sale, as a reasonable purchaser would do, she would have considered that the defendant was in possession and if she had gone further to inquire of him about the nature of his occupation she would have had notice of the nature of his interest. Perhaps I may at this stage refer to a portion of the judgment of Obaseki, J.S.C., in the case of Karimu Ayinla v. Sifawu Sijuwola SC./26/1983 delivered on the 11th May, 1984 -(1984) 5 SC.44)at pages 76 and 77 the learned Justice stated as follows:

….if there is proof that money was paid for land coupled with the entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if possession is continuously maintained. See T.A. Orasanmi v. M.O. ldowu (1959)4 F.S.C.40; [19591 S.C.N.L.R.97.

More close to the contention here is the decision in Soremekun v. Shodipo (1959) L.L.R.30 to the effect that if land is sold to a party without execution of a formal deed of conveyance, his interest was no more than equitable. Legal estate of another party would be more preferred to it if the party with the equitable interest is not in possession. As these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession, it cannot be overridden by a legal estate. This principle accords with the decision of the Privy Council in Oshodi v. Balogun and Others 4 W.A.C.A. 1 at page 6 and Sulaiman and Another v. Johnson 13 W.A.C.A.213. Whether land is sold under native law and custom or merely sold without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, inequitable interest thus created cannot be superseded by a subsequent legal estate. In effect, it matures into legal estate.

In the final analysis, I hold that the plaintiff has failed to prove his claims against the defendant and the action is hereby dismissed with N100.00 costs to the defendant.

Being dissatisfied with the judgment of the learned trial Judge, the plaintiff appealed to the Court of Appeal without success.

The Court of Appeal by a majority of two Justices (Mohammed and Ademola, JJ.C.A.) to one Justice (Kolawole, J.C.A.) dismissed the appeal and affirmed the decision of the learned trial Judge (Akin Oshodi, J.)

In the concluding part of his judgment, Uthman Mohammed, J.C.A., who read the lead judgment. said:

On the 17th of January. 1975 and the 4th April, 1975 payments were made and receipts Exhibits E and El, were issued respectively, for plots 27 and 28. He obtained a conveyance for plot 28. He obtained no conveyance for plot 27. On the evidence in respect of this acquisition, the witness of the appellant, p.w.2 said:

I know plots 765 and 766 in the area. It was acquired by Government Acquisition. Before Government acquisition we had sold to some people. As a result of the acquisition we gave other plots to some tenants in the area affected.

The respondent testified and proved by production of Exhibit C that he was the one to whom plots 765 and 766 were sold. The appellant gave evidence that plot 27 was sold and conveyed to her in April. 1976.

I will agree with the learned trial Judge that the appellant has failed to prove that plot 27 was sold to her and that she had gone into possession before the respondent. In an action for trespass to land, before a plaintiff can succeed he must have a finding of possession of the land in question in his favour. See Oladimeji v. Oshodi (1968) I All NL.R. 416……. The record is clear from the evidence adduced that not a single witness gave evidence of possession of plot 27 in favour of the appellant …….The appeal is without merit and it is dismissed."

Dissatisfied with the decision of the Court of Appeal, the plaintiff has further appealed to this court, the Supreme Court on three grounds. The three grounds of appeal filed and argued read:

1.     The Court of Appeal erred in law and facts when it failed to weigh and shrink from evaluating the evidence properly and therefore came to wrong conclusion by holding that plots 27 and 28 were sold to the defendant/respondent and was put into possession of the said plots 27 and 28 basing this on a wrong notion that Exhibit 'C' issued to the defendant/respondent and thereafter paid purchase money as per Exhibit E-E1 and a deed of conveyance was executed in favour of the defendant/respondent in respect of plot 28 while Exhibit D was issued to the defendant/respondent in respect of plot 27.

Particulars of Error of Law and Facts

(a)    The Court of Appeal failed to consider unchallenged evidence given by the administrators of the estate of late J.A. Ajao and other witnesses called by the plaintiff/appellant that plot 27 was sold to the plaintiff/appellant and not to the defendant/respondent [Particulars (b), (c). (d), (e), (f) and (g) not copied.]

2.     The Court of Appeal erred in law and facts by holding that defendant/respondent purchased plots 27 and 28 from Ajao Brothers contrary to the averments in the defendant/respondent's statement of defence.

3.     The Court of Appeal erred in law and facts when it raised and agreed that the fact in this case as to the plan attached to the deed of conveyance (Exhibit A') of the plaintiff/appellant was similar to the case of Unisales Commercial Company Limited v. Curthbert Oluremi Dawodu (unreported) CA/L/78/85 in that the plan attached to the plaintiff's/appellant's deed of conveyance (exhibit ‘A’) was conveying property belonging to Ajao Brothers and not the property of late J.A. Ajao which was vested in the administrators and therefore the plaintiff/appellant could not succeed in her claim for declaration of title to plot 27.

Particulars of Errors in Law and Facts

(a)    Parties are bound by their pleadings and the issue as to whether the plan attached to Exhibit A conveyed the property which belonged to Ajao Brothers or the property of late J.A. Ajao was not raised in the pleadings of the parties and there was no complaint from the defendant/respondent that the land which was conveyed to the plaintiff/appellant did not form part of the estate of late J.A. Ajao.  [(b). (c) and (d) not copied.]

(e)   The Court of Appeal wrongly formulated issue for parties which were not raised and canvassed in the lower court.

Three issues formulated by the appellant in his brief before us areas follows:

1.      whether the defendant has adduced sufficient evidence to establish the sale of plot 27 to him by the executors of the estate of late J.A. Ajao,

2.      whether the Court of Appeal can base its judgment on facts which were not pleaded or can base its judgment on evidence that was at variance with the pleadings of the parties.

3.      whether the Court of Appeal can formulate issues for the parties which were not raised in their pleadings and not canvassed in the trial court.

The respondent in his brief, formulated six questions for determination. These questions. I observe. are totally at variance with the three questions formulated by the appellant. These six questions read:

1.     Was the Court of Appeal right to have affirmed the decision of the learned trial Judge on the issue of trespass which was based on possession?

2.      whether the appellate court will disturb the findings of facts made by the learned trial Judge on the issue of the majority decision of the Court of Appeal?

3.      whether it was the function of the Court of Appeal to weigh and evaluate evidence as contained in ground I of the notice of appeal?

4.      whether the majority decision of the Court of Appeal actually decided that the appellant could not succeed in her claim for declaration of title as contained in ground 3 of the notice of appeal.

5.      whether the appellant could be heard on the issue of title which her learned counsel had abandoned at the Court of Appeal after making an admission to the effect that the plaintiff had no title to the land in dispute;

6.     whether the plaintiff has discharged the onus placed upon her in an action for declaration of title.

This appeal concerns primarily a sale of land and transfer of title to the land. The parcel of land sold has been described as the plot 27 in the landed property owned by Chief J.A. Ajao (deceased). The land was therefore part of the estate of Chief J A. Ajao (deceased) and vested in the executors of the Will of the deceased. It appears J.A. Ajao Brothers managed the plots and allocated and sold them to purchasers. They have now found themselves in the awkward position of having sold plot 27 to two people. First they sold it along with plot 28 to the respondent in 1975 and collected the purchase price. But no conveyance in respect of plot 27 was given. In 1976 they also D sold and conveyed the same plot 27 to the appellant. When they sold plots 27 and 28 to the respondent, it was in exchange for plots 765 and 766 for which they had collected payment and when they allocated plots 27 and 28 in substitution, as these plots were of larger dimension, they demanded and collected N1128.00 as additional payment to the N3000.00 collected previously as reflected in Exhibit C the letter of allocation. When Ajao Brothers F subsequently sold plot 27 to the appellant, they sold it for and collected only N1000.00 This is reflected in Exhibit A, the Deed of Conveyance dated the 9th day of April, 1976 registered as No.35 at page 35 in volume 1504 of the Register of Deeds kept in the Office at Lagos.

The formulation of issues for determination by the respondent is prefer- F able having regard to their intrinsic relevance to the claims and grounds. The issues for determination are, in my view, straightforward. They are in simple terms as follows:

(1)     did the vendors sell the plot to the appellant before they sold to the respondent?

(2)     if there was sale was payment of the purchase price agreed made?

(3)     if payment was made who was first in time?

(4)     was possession delivered?

(5)     to whom was possession delivered?

(6)     was a Deed of Conveyance executed and to whom?

(7)     was possession delivered to the appellant at the time the conveyance was executed?

The answers to these questions are contained in the concurrent findings of fact made by the High Court and the Court of Appeal - the two lower courts.

Having considered the questions, I will proceed to answer them. The answer to the first question is in the negative. The dates on Exhibit A and Exhibit C loudly proclaim the answer that plot 27 was sold to the respondent before the sale to the appellant. Exhibits E to El provide the answer to the 2nd question. The respondent paid the purchase price, got receipts Exhibits E to El for it and entered into possession of the land before the plot was sold to appellant. That also answers questions 3, 4 and 5. The sale to the appellant was at a price far below the amount paid for it by the respondent. See exhibits A, C and E El.

The conveyance for plot 27 was made in favour of the appellant. Al-though the appellant obtained this conveyance Exhibit A, she was not put in possession of plot 27 as possession was already in the respondent before she bought. It was her failure to obtain possession that led to the commencement of these proceedings in the High Court.

The appellant's problem was confounded by the plan attached to Exhibit A, which was supposed to describe the property of J.A. Ajao (deceased). Instead, it described the property of J.A. Ajao Brothers.

In a claim for declaration of title, the plaintiff can only succeed in obtaining the declaration from the court on the strength of his own case and not on the weakness of the defence. See

Kodilinye v. Mbanefo Odu 2 W.A.C.A.336

Mogaji & Ors v. Cadbury Nig. Ltd. & Ors. (1985) N.S.C.C. (Vol. l6 Pt.l1)959;(1985)2N.W.L.R.(Pt.7)393

Okafor v. Idigo III & Ors. (1984) N.S.C.C. (Vol.15)350; t1984J 1 S.C.N.L.R.481.

In the instant appeal, I cannot say that the case of the defence is weak. Therefore the appellant having failed to get possession and a proper conveyance is deprived of every bit of comfort and solace from all quarters, the failure of the respondent to get a conveyance executed in his favour not withstanding.

On the issue of trespass, it is the law that a claim for damages for trespass lies at the suit of one in possession or entitled to possession.

See Amakor v. Obiefuna (1974) N.S.C.C. Vol.9, p. 141; (1974)1 All N.L.R. (Pt. 1) 119. The appellant was neither in possession nor entitled to possession.

The finding in favour of the respondent that he had been given possession and was in possession of the parcel of land when the appellant bought is fatal to the appellant's claim. It means she had constructive if not actual notice of the respondent’s equitable interest. If the appellant had had no notice of the respondent’s equitable interest, the absence of knowledge may have provided a haven, which could have protected his interest from eroding forces of knowledge of the respondent’s equities. The trial court having found that she is not a bona fide purchaser of the legal estate without notice of the equitable interest of the respondent, dealt the final blow to her tottering case.

The appeal is an appeal principally on the facts and the grounds involve questions of mixed law facts. Where one appellant has failed to show that the concurring facts found by the courts below were based on an erroneous view of or mis-apprehension of the facts before them, the Supreme Court is bound by those facts and will not reopen those facts reappraisal and re-assessment. The judgment of the court below properly based on those findings will be affirmed. Balogun v. Labiran (1988) 1 N.S.C.C. (Volume 19) 1056;(1988)3 N.W.L.R. (Pt.80) 66. It is only where the appellant has succeeded in showing that the concurring findings of fact were wrong in that they were based on a misapprehension of the evidence before it or an Erroneous appraisal and assessment of such evidence or that the findings were perverse, or that the evidence was inadmissible and the findings occasioned a miscarriage of justice that the Supreme Court will interfere with such findings. See Adimora v. Ajufo (1988)1 N.S.C.C. Vol. 19 1005; (1988) 3 B N.W.L.R. (Pt.80) 1., Najifor & Ors. v. Ukonu & Ors. (No.2) (1986) N.S.C.C. (Vol.17 Pt.ll) 1067; (1986) 4 N.W.L.R. (Pt.36) 505., Okonkwo & Anor. v. Adigwu (1985) N.S.C.C.(Vol.16Pt.1)680 Lokoyi. v. Olojo (1983) 2 S.C.N.L.R.127; (1983) 8 S.C.6.

The finding of the trial court, Oshodi, J. to wit:

From the totality of the evidence before me, I am satisfied that the defendant entered into possession of the land and was in possession at the time the same plot of land was sold and conveyed to the plaintiff. I wish to point out at this stage that I do not accept the plaintiff's evidence that after the land was conveyed to her she entered into possession."

Concludes the matter. Earlier, the learned trial Judge had in his judgment said:

It is my finding that the plaintiff has failed to prove that she was a bona fide purchaser of the legal estate of the disputed land without notice of the prior equitable interest of the defendant. If she had inspected the land at the time of sale, as a reasonable purchaser would do, she would have discovered that the defendant was in possession and if she had gone further to enquire about the nature of possession, she would have had notice of the nature of his interest.

What is the meaning of a 'bonafide' purchaser of the legal estate for value without notice?' 'Bonafide' is defined as

"In good faith, honestly, without fraud, collusion, or participation in wrong doing.

Purchaser for Value

'Purchaser' in its technical sense does not necessarily imply purchaser for value. 'For value' are included to show that value must be given to earn the immunity from equitable claimants. Value means any consideration in money, money's worth (e.g. other lands. stocks and shares or services or marriage. (See Le Neve v. Le Neve (1747)1 Ves Sen 64: Wh & T. ii 157 Willoughby v. Willoughby 1 TR. 763.

Of a Legal estate.

As courts of equity break in upon the common law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate. See Wortley v. Birkhead (1754)2 Ves Sen 571 at 574 per Lord Hardwicke, LC.

Without Notice

He must have no notice of the existence of equitable interest. He must have neither actual notice nor constructive notice nor imputed notice.

A person has actual notice of all facts of which he has (or has had) actual knowledge however that knowledge was acquired.

Constructive Notice.

The court of Chancery insisted that purchaser should inquire about equitable interests with no less diligence that about legal interest which they could ignore only at their own peril. The motto of English conveyance is caveat emptor; the risk of incumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper inquires, and had still found nothing to indicate the equitable interest.

In the instant appeal, if the appellant had visited the site of the land, plot 27 before completing the purchase, she would have found that the respondent was already in possession of the land and then further enquires would have revealed that her vendors had already sold the plot and collected the purchase price from the respondent.

Imputed Notice

There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual or constructive notice (re Aims Corn Charity (1901)2 Ch. 750) which the agent receives is imputed to the purchaser. There is no evidence that any agent acted for the appellant.

Since plot 27 was already sold to the defendant/respondent and who was put in possession before the appellant bought and received the conveyance Exhibit A assuming that the plan attached to Exhibit A correctly describes the property, she bought subject to the equitable interests in the land acquired by the respondent.

In view of all I have said above, I found no merit in the appeal and for the above reasons. I dismissed the appeal and affirmed the decision of the Court of Appeal.

Judgement delivered by

Karibi-Whyte. J.S.C.

I summarily dismissed this appeal on the 9th July, after reading the record of proceedings, briefs of argument of counsel in the appeal, and after hearing the oral argument in elaboration of the briefs of argument filed. I then reserved my reasons for so doing till today.

I have had the privilege of reading the judgment of my learned brother, Obaseki, J S.C., in this appeal. All the issues have been so exhaustively considered, and I so entirely agree with the reasons given that I consider it unnecessary in the circumstances to state my own reasons, which are not different. I therefore adopt the reasons for judgment by Obaseki, J.S.C. as my own.

Judgement delivered by

Nnaemeka-Agu. J.S.C.

On the 9th day of June, 1990, after listening A to the argument of the counsel and after reading the record of appeal and considering the grounds of appeal on the basis of the briefs filed by both parties, I dismissed this appeal as unmeritorious but reserved the reasons for my judgment till today. I now give my reasons.

I have also had the additional privilege of reading in draft the lead Reasons for Judgment just delivered by my learned brother, Obaseki. J.S.C. He has so admirably encapsulated and resolved issues arising in this appeal that there is very little I can usefully add. I adopt those reasons as my own. It was for the same reason that I summarily dismissed the appeal on the 9th day of July, 1990.

Judgement delivered by

Olajide Olatawura. J.S.C.

After reading the record of Appeal. the briefs of argument filed on behalf of the parties and after hearing the oral submissions made by the learned Counsel on both sides, I dismissed the appeal summarily on 9th July, 1990.1 adjourned reasons for the judgment till today.

I have read the judgment of my learned brother, Obaseki, J.S.C. and D the reasons given for dismissing the appeal. I have nothing to add in view of the detailed reasons and meticulous analysis of the law involved. I will with respect, adopt them as mine and it is for the same reasons that I dismissed the appeal.

Editor's Comment

On Monday, the 9th day of July 1990 when this matter came up, Augustine Nnamani, J.S.C. concurred in dismissing the appeal. Unfortunately, he died on Saturday, 22nd September 1990 before the Reasons for Judgment were given on Friday, 5th October 1990.

Counsel