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 document or the material fact thereof was written, made or initialled by him or otherwise recognised by him in writing as one for the accuracy of which is responsible." The document, Exhibit "F", was not made or produced or signed or initialled by the appellant. It is not a statement within the context of Section 90(3). It is however worthless for the reasons stated by the learned trial Judge. 

It is also not correct that the learned trial Judge did not hear counsel, particularly counsel for the defendant, further on the question of admissibility of Exhibit "F." In his address at page 47 line 29 to page 48 line 6 of the records, counsel for the appellant in his final address argued that an earlier case instituted by the plaintiff, Suit No. ID/114/76 was struck out and that Exhibit "F" had been prepared before then and that Suit No. ID/483/78, the subject matter of this appeal, was independent of that suit. He therefore submitted that "Exhibit 'F' had been correctly admitted in evidence." Of course the trial Judge rejected his submission. There is therefore no merit whatsoever in the complaint against the use made of Exhibit "F" by the learned trial Judge or the grievance that counsel was not allowed to address further on the issue of admissibility of Exhibit "F."

The appellant tendered Exhibits "E" - "E?" being receipts allegedly received by him in respect of payments made relating to the land. The learned trial Judge observed that the land to which they relate was not sufficiently described on the receipts. Learned counsel submitted that this was a misdirection since the identity of the land in controversy was not in dispute.

It is true that the identity of the land being litigated upon was not in dispute.

Issues were however joined as to whether the land belonged to Olalabi Sulu and whether it was the parcel of land allegedly leased to the appellant in the name of his brother. I find nothing wrong in the observation of the learned trial Judge. His judgment is to the effect that although the appellant claimed that the land in dispute was sold to him he had failed to show that it was in respect of the very land that the receipts were issued. 

It was also the submission of the learned counsel on behalf of the appellant that the learned trial Judge made wrong use of his discretion for not allowing the appellant to call further evidence to prove a pleaded document which, according to counsel was a vital document. Before resolving the issue, if indeed it should be resolved, whether or not the learned trial Judge was right or wrong in refusing the application, it is necessary to consider first the objection of learned counsel for the respondent to ground 6 which relates to this aspect of the appeal.

It was the contention of the learned counsel for the respondent, Mr. Adegunle, that since the complaint of the appellant was against an interlocutory order, by Section 25(2)(a) of the Court of Appeal Act, 1976, the appeal against it ought to have been lodged within 14 days of the ruling of 23rd October, 1981. He also pointed out that leave of court ought to have been obtained in accordance with Section 15(1) since the particular ground of appeal raised the issue of mixed law and fact. In support of his contention, he cited the case of Ajani v. Giwa (1986) 3 N.W.L.R. (Pt.32) 796 at page 804. In that case, the supreme Court held that since the 3rd ground of appeal related to an interlocutory decision which did not finally dispose of the rights of the parties and the appeal was against the judgment which finally determined the case between the parties, the appeal in respect of ground 3 could not possibly be as of right particularly as the ground was of mixed law and fact.

It is to be noted that Order 1 Rule 20(7) of the Court of Appeal Rules states that "The powers of the court in respect of an appeal shall be restricted by reason of any interlocutory order for which there has been no appeal." 

Also by Order 3 Rule 22 which learned counsel for the appellant referred to in his reply brief "No interlocutory order from which there has been no appeal shall operate as to bar or prejudice the court from giving such decision upon the appeal as may be seen just."

It is obvious that by the combined effect of Order 1 Rule 20(7) and Order 3 Rule 22, this court possesses the discretionary powers to treat complaints relating to interlocutory orders or Rules in respect of which there has been no separate appeal. These rules of court however did not say that the appellant should be heard as of right in respect of such interlocutory order or ruling. The submission of learned counsel for the appellant seems to suggest that he could be heard as of right because the relevant rules confer on this court the discretionary powers stated therein.

I hold the view that in situations such as this, it behoves the appellant to, at least, seek leave to argue the ground relating to such an interlocutory order or ruling. A more acceptable procedure has been for the appellant to file an application for extension of time to seek leave and to appeal against the interlocutory ruling or order if he has valid reasons for the tardiness or neglect.

As stated by Jessel, M.R., in While v. Witt (1877) 5 Ch.D. 589, the rule that the powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of an interlocutory order from which there has been no appeal "was only intended to prevent the right of an appeal from being interfered with by the existence of an interlocutory order which incidentally involved a decision on the point." In the same case, James, L.J., said that, "it was never intended that an interlocutory order which amounts to a finding or a verdict should be open to appeal after the twenty-one days (now fourteen) because the time for appeal from the final order on it has not expired." (See  also Sugden v. Lord. St. Leonards (1876) 1 P.O. 268, Laird v. Briggs (1881) 16 Ch.D. 663 and Brynon v. Godden (1879) 4 EX.D. 246 and Order 59/10/19 English Supreme Court Prached, 1979 Vo. 1).

For the above reasons ground 6 is incompetent. However, assuming that the ground is competent, which is not the case, learned counsel has not shown that the additional evidence would have improved the case for the defence. Paragraph 7 of the Statement of Defence reads:

"7 By virtue of a Purchase Receipt dated 2nd day of August, 1949, the said owner Mr. Durojaiye Oseni sold the said piece or parcel of land in dispute to Alhaji A.G. Olalabi Sulu in possession thereof. The defendant will make use of the receipt at the trial." 

In effect the defence had wanted to tender a purchase receipt dated 2nd August, 1949 issued by Durojaiye Oseni to A.G. Olalabi Sulu. This piece of   evidence would not establish that what Sulu sold to the brother of the appellant or co the appellant in his brother's name was in fact the land in dispute. 

The argument of counsel in this court has also not improved matters to enable it exercise its general powers under Section 16 of the Court of Appeal Act (1976) in the appellant's favour. The case of Anisiubi v. Emodi (1975) 2 S.C. 9 at page 13 cited by the counsel is inapplicable to the facts of this case.   In the case under reference the plaintiff sought for an adjournment because his counsel was absent and could not conduct his case. The learned trial Judge, Oputa, J. (as he then was) proceeded to dismiss the plaintiffs case. 

The Supreme Court was of the view that the learned trial Judge did not exercise his discretion judicially because the two earlier occasions when counsel for the defendant was absent, the learned trial Judge had merely adjourned the case without a word of complaint about the apparently unexplained absence of the defendant's counsel. The Supreme Court concluded:

"It seems to us that as the Judge had had occasion to see the pleadings filed by both parties, he should not have allowed the default of counsel to make him dismiss the plaintiffs claim when it must be obvious that to do so would defeat her claim altogether   and thereby result in injustice to her. It would seem that the learned trial Judge was more angered by the dereliction of duty on the part of counsel than by anything for which the plaintiff could be blamed; indeed, his ruling shows clearly no default on the part of the plaintiff/appellant. The learned trial Judge obviously did not take into consideration all the circumstances of the case before dismissing the plaintiff's action."

There is also no substance in the complaint that the judgment was against the weight of evidence. The learned trial Judge considered the evidence adduced by both sides. There is no doubt that on the preponderance of evidence the case of the plaintiff was bound to succeed.

I find that this appeal lacks merit. It is dismissed. I uphold the judgment of Beckley, J., dated 2nd November, 1981in Suit No. ID/483/78 giving possession to the plaintiff of the piece or parcel of land situate at Moricas Area, Oniwaya Road, Agege marked "B" in the Survey Plan No. 0.213 prepared by O. Ogunmekan and dated 26th July, 1971. Also upheld is the order of perpetual injunction restraining the defendants, his agents and servants or privies whatsoever, from remaining or continuing in occupation of or in any way tampering, dealing, or interfering with the said parcel land," as claimed in the writ of summons.

Costs assessed at N450.00 in favour of the respondents.

ADEMOLA, J.C.A.: I have had the opportunity of reading the judgment just delivered.

I have nothing to add.

AWOGU, J.C.A.: I agree with the reasoning and conclusions reached by my brother, Akpata, J.C.A., in the judgment just delivered. Although Order 3 Rule 22 of the Court of Appeal Rules, 1981 provides that no interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision upon the appeal as may seem just, the purpose of the provision is to shut the door against an interlocutory judgment operating as estoppel. If, however, at the end of the day, there is no appeal against such interlocutory judgment it cannot be raised as a ground of appeal against the final judgment, save with the leave   of the court. Save for this point, the appeal lacks merit and is hereby dismissed with N450.00 costs.

Appeal dismissed.

     Appearances