OBA GANIYU ODEWALE OKEIDE ODESANYA
The Oloto of Oto and Lagos Mainland
(For himself and on behalf of the Oloto Royal Family of Lagos State
REGISTERED TRUSTEES OF DEEPER CHRISTIAN LIFE MINISTRY
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State Coram L. A. Okunnu, J in Suit No. LD/1149/99 delivered on the 5th day April, 2011 dismissing the Appellant's claims for declaration of title to land, damages for trespass and injunction. The appellant as Claimant in the lower Court instituted this action against the Respondent as defendant, seeking as per their Further Amended Statement of Claim dated 20th April, 2010 the following reliefs:
"a. DECLARATION that the Claimant is entitled to customary/statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Gbagada in Kosofe Local Government Area of Lagos State known as Nos. 2-6, Ayodele Okeowo Street, Gbagada, Lagos State.
b. The sum of One Hundred Thousand Naira (N100, 000) being damages for trespass committed by the defendants, their servants, agents and/or privies.
c. Perpetual injunction restraining the defendants, their servants, agents and/or privies from committing further acts of trespass on the land.
d. The cost of this action."
The parties filed and exchanged pleadings. The facts of the case as deduced from the pleadings as follows: The parcel of land in dispute which is located in Gbagada, Lagos, forms part of a vast tract of land which belongs to the Oloto Royal Family of Lagos. The Appellant, the traditional monarch and head of the Oloto Royal Family ascended the throne in 1990. He claimed that soon after his ascension to the throne, the unauthorized activities of the Respondent on the land in dispute were brought to his attention. He then instructed his solicitors to write to the Respondent to desist from its offensive activities. The Respondent ignored the letter. He then instituted this action in 1999 to protect the family-land.
The Respondent's claim on the other hand is that the Oloto Royal Family had by a registered deed of conveyance made in 1945 (Exhibit C1) sold the land in dispute to one Adekunle Coker (now deceased). The estate of the late Adekunle Coker by a deed of assignment executed in 1980 assigned the interest of the estate in the land in dispute, to the Respondent Exhibit C15.
The Appellant sought to set aside the conveyances (CI and C15) on the ground that the conveyances were fraudulently executed. The Respondent denied all the charges of fraud in the pleading and evidence. The learned trial judge after evaluation of the evidence dismissed all the claims of the Appellants. The Appellant dissatisfied with the judgment of the Court filed a notice of appeal with four grounds of appeal.
The parties filed and exchanged briefs of argument. The appellant's brief was settled by Dotun Oduwobi Esq and Samuel Etaifo Esq of Abraham Adesanya & Co. The Respondent's brief was settled by G.I.J Ajhigbe Esq. Out of the four grounds of appeal, learned counsel for the appellant distilled two issues as follows:
i. Whether in the light of the facts and the evidence, the lower Court's reliance on the presumptions raised in Sections 123 & 150 (1) of the Evidence Act is justifiable;
ii. Whether the lower Court was right to have sustained the plea of laches and acquiescence against the Appellant.
In the Respondent's brief, learned counsel formulated a sole issue as follows:
Whether the Court of Appeal will intervene or interfere with the lower Court Judgment which properly evaluated and applied the facts and the law applicable to the facts as in this case?
Whether in the light of the facts and the evidence, the lower Court's reliance on the presumptions raised in Sections 123 & 150 (1) of the Evidence Act is justifiable.
Learned counsel on the above issue submitted that the Respondent having traced its root of title to the Oloto Royal Family, the learned trial judge was right in placing the burden of proof on the Respondent to prove the transfer of title by the Oloto Royal Family to the Respondent's predecessor in title. Counsel submitted that in the attempt to discharge the burden, the Respondent relied on two documents of title, viz the deed of conveyance dated 31st December, 1945 purportedly executed by the Oloto Royal Family in favour of the late Coker (Exhibit C 1) and the deed of assignment dated the 12th August, 1980 made by the estate of the late Coker in favour of the Respondent (Exhibit C15). Learned counsel argued that Exhibit C1 was not signed by the purported vendors but that their names were merely written on the document by one individual and that the learned trial judge was wrong in relying on the presumptions in Sections 123 and 150(1) of the Evidence Act in reaching the conclusion that the documents were valid and in entering judgment in favour of the respondent. Counsel submitted that these presumptions are rebuttable presumptions and that they had succeeded in rebutting the presumption by their persistent denial that Exhibit C1 was signed by the purported vendors who were literates and able to sign their signatures and their persistent denial of the transfer of title by the Oloto family to the respondent's predecessor in title. Counsel submitted that for the presumption in Section 123 of the Evidence Act to be applicable, the document must be at least 20 years old and must carry a known individual's handwriting or signature. Counsel argued that Exhibit C1 was not signed by the persons named thereon and the presumption was consequently inapplicable. Counsel distinguished the case of Godwin Nsiegbe v. Obinna Mobemena (2007) 10 NWLR (Pt. 1042) 364, 380 heavily relied on by the learned trial judge on the ground that the document in Nsiegbe's case was thumb-printed and consequently was duly signed or executed. Counsel cited and relied on the cases of Agbanifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 and Buhari v. Obasanjo (2005) All FWLR (Pt. 258) 1604
With respect to Section 150 (1) of the Evidence Act, learned counsel submitted that contrary to the assumptions and the postulations of the lower Court, there was no evidence of such substantial compliance as could have warranted the invocation of the presumption of regularity.
Counsel submitted that there was no evidence of compliance with the due process of authentication or substantial compliance with the law as to justify the invocation of the presumption of regularity
Whether the lower Court was right to have sustained the plea of laches and acquiescence against the Appellant.
On the above issue, learned counsel submitted that while the learned trial judge defined the law relating to laches and acquiescence correctly, the application of those principles to the established facts and evidence of this case was wrong. Counsel submitted that there was no evidence of acts of possession by the respondent or his predecessor in title to justify the plea of laches and acquiescence. He submitted that the building operations on the land started in 2006 long after this suit had been instituted in 1999. Counsel's submission is that there was no evidence of possession or development activities on the land in dispute either during the era of the late Coker (respondent's predecessor in title) or subsequent to 1980 (when the Respondent bought) but before 1999 when this case was filed, which could have put the Appellant's family or anyone on notice of any adverse incursion into their land. Counsel argued that it is this period when nothing happened that the learned trial judge focused on but quite erroneously assumed that the construction activities which she said were not challenged, had taken place in. Counsel submitted that the learned trial judge did not advert her mind to the evidence which showed that the activities took place not before the Appellant became Oloto in 1990, but only after the institution of this suit in 1999 and that there was no basis for the conclusion that the Appellant was guilty of Laches and Acquiescence, over what clearly happened after he became Oloto and in respect of which he promptly instructed his Solicitors to write.
Relying on the cases of Okedion v. F. A. A. N (2008) ALL FWLR (pt.441) 914 at 936 and Umesie v. Onuagaluchi (1995) 9 NWLR (Pt.421) 515, counsel submitted that as a general principle of law, an appellate Court will not readily interfere with the findings of the lower Court but that where those findings are "perverse" in the sense that they are not supported by, or go against the grain of evidence, the appellate Court will disturb the findings. Counsel finally urged us to interfere with the findings of the lower Court which are perverse, to resolve issue two in favour of the appellant; allow the appeal and to set aside the judgment of the lower Court and enter judgment in favour of the appellant.
Whether the Court of Appeal will intervene or interfere with the lower Court Judgment which properly evaluated and applied the facts and the law applicable to the facts as in this case?
Learned counsel started his arguments by submitting that the Appellant's primary complaint against the respondent was that the conveyances Exhibits C1 and C 15 are null and void as they were forged by the respondent. Counsel argued that the Appellants case was based on fraud and that the judgment of the lower Court is that the documents were not forged but valid. Counsel submitted that neither the ground of Appeal nor issue No.1 attacked the decision of the lower Court because there was no Appeal against the main ratio of the judgment of the lower Court. He argued that the appellant dwelt on the application of S.123 and 150 of the Evidence Act. Counsel submitted that Exhibit C15 was executed on 12/8/1980 and that on 3/3/2010 when it was tendered in evidence and marked Exhibit C 15, 30 years had elapsed. Counsel submitted that this fact was not denied by the Appellant and that the Court rightly applied S 123 of the Evidence Act on the finding of the Court that Exhibits C1 and C 15 were valid and not tainted with fraud as alleged but not proved.
On the issue of laches and acquiescence, counsel submitted that the Respondent led evidence on these equitable defenses and that the appellant did not challenge the evidence led. Counsel further submitted that the Appellant gave evidence
to the effect that when he became the Oloto, he was informed of the illegal occupation by the defendant and that he acted at once and was neither guilty of delay or standing by but under cross examination by the Respondent when asked why he did not take any step until 1999, he answered that he had not been capped. Counsel submitted that the twin concept of laches and acquiescence are predicated on the public policy that the protection of the law be bestowed upon long and undisturbed possession of land as in the present case. Counsel submitted that the findings of the learned trial judge are based on sound principles of law and has not been shown to be perverse. He urged us to dismiss the appeal and affirm the judgment of the lower Court.
Learned counsel for the Respondent had argued that neither the grounds of Appeal nor issue No.1 attacked the decision of the lower Court because there was no appeal against the main ratio of the judgment of the lower Court. Issue one is based on grounds 1, 2, & 3 of the Notice of Appeal. The grounds without their particulars read as follows:
i. GROUND ONE
The learned trial judge erred in law when she presumed that both Exhibits C1 and C15 had been duly executed and when she concluded that the two documents are valid.
ii. GROUND TWO
The learned trial judge was wrong in law when in further attempting to justify the supposition that due process was followed and that the Conveyance Exhibit C1 was duly authenticated, she erroneously placed reliance on Section 150(1) of the Evidence Act.
iii. GROUND THREE
The learned trial judge erred in law when she held that: "In this present case, both Exhibit C1 and Exhibit C15 were more than twenty years old at the time trial commenced in this suit on the 3rd of March, 2010...On the authority of Section 123 of the Evidence Act, I will presume that both documents had been duly executed."
Whether or not a Deed of Conveyance evidencing sale of land was duly executed is of primary importance in a land suit. I am consequently of the view that the above grounds and their particulars as set out in the Notice of Appeal and the issue formulated there from are germane to the ratio decidendi of the judgment. The contention of learned counsel is misconceived and is hereby discountenanced.
It is trite that in an action for declaration of title to land, the burden of proof is on the Claimant to prove his ownership of the land through one of the five recognized ways of proving ownership of land as established in the locus classicus Idundun v. Okumagba (1976) 9-10 SC 337. The Claimant must succeed on the strength of his own case and not on the weakness of the Defendant's case. Kodilinye v. Odu (1935) 2 WACA 336: Kaiyaoja & Ors v. Egunla (1974) 72 SC (Reprint) 49. There is no dispute as to original ownership of the land. The Appellant established original ownership of the land by the Oloto Family by evidence of traditional history. The case of the Appellant from his pleadings and evidence led is that the land in dispute originally belonged to the Oloto Chieftaincy Family by settlement from time immemorial under Yoruba Native Law and Custom without any adverse claim. The Respondents admitted the assertion. The case is that the land in dispute was part of the vast area owned by the Appellant's family but which was sold to their predecessor in title, Adekunle Coker from whose estate the Respondent bought the land. The sale by the Appellant's family to Adekunle Coker was evidenced by a Deed of Conveyance dated 31/12/45 registered as No 82 at page 82 in Volume 672 of the Land Registry Lagos and admitted in evidence as Exhibit C1. The Appellant claimed that the Exhibit was fraudulent and a forgery and gave particulars in his Reply as follows:
"1. Oloto Fagbayi who was alleged to have signed the conveyance reigned from 1946 and not from 1945 as claimed by the Defendants.
2. The persons who were alleged to have executed the conveyance with Oloto Fagbayi at the time of its execution were not members of the Oloto Chieftaincy Family.
3. The alleged signatures of Oloto Fagbayi and other principal members of the Oloto Family on the conveyance ... were handwritten by an individual and not signatures of Oloto Family.
4. The Claimant can identity the signature of Oloto Fagbayi and shall contend at the trial of this suit that Oloto Fagbayi did not sign the document pleaded by the Defendants......"
In dealing with the above issues, the learned trial judge in his judgment at page 294 of the printed record observed as follows:
".....And in order to show that Chief Tiamiyu Oduntan Fagbayi was already the Oloto in 1945 when Exhibit C1 was made, and that the other persons referred to in the Conveyance were indeed members of the Oloto Family, the Defendant has placed before the Court certain documents that it obtained from the National Archives. These are letters and notes of meetings pertaining to the Oloto Family's interactions with the colonial government regarding the compulsory acquisition of its land.
There are also notices to the public, warning against unauthorized dealings on the family land. The documents were all made between the years 1945 and 1948. They are Exhibits C5 to C13.
Exhibit C5 is entitled "Caution". It is a notice to the public dated 28th of July 1945, and written by a certain E. Jas Ogundimu, the Secretary to the "Oloto Family and Council......Exhibit C6 (dated the 3rd of March 1947), C7 (dated the 24th of April 1947), and C10 (dated the 11th of May 1948), are letters written by the Oloto together with other named representatives of the Oloto Family, to either the Commissioner of the Colony of Lagos, or the Commissioner of Lands of Lagos. Exhibit C8 is entitled "Notes on an interview held at the Commissioner of the Colony's Office Lagos on Thursday 19th August, 1947.....on the subject of Oloto Family Land...."
No doubt, all these documents were for and on behalf of the Oloto Family, and they pertain to the Family's land. The Claimant has not done anything to controvert this fact. The letters were signed by the chosen Family representatives, whilst the minutes of the meeting (Exhibit C8) also show all those who were authorized to speak or act for the Family regarding its land holding. In one or the other of them, all those listed in Exhibit C1 as the head, and principal members of the Oloto Family - that is, Tiamiyu Oduntan Fagbagi (as "Chief Oloto of Oto)", Emmanuel Jasimi Ogundimu, Yesufu Fadairo, Lasisi Olowu and Sanusi Oba are also listed as the Family's representatives.
When confronted with these documents (Exhibits C5 to C13) during the process of cross-examination, the Claimant did not deny the name of Chief Tiamiyu Fagbayi on them. What he continued to deny was the defence position that Chief Tiamiyu Fagbagi was the Oloto as at then...."
From the claimant's answers under cross-examination, all doubts were resolved about the claim of the Defendants that Chief Tiamiyu Fagbami was the Oloto of Oto in 1945 when Exhibit C1 was executed; and that all the vendors named along with Chief Fagbami were principal members of the family. The findings and conclusions of the learned trial judge on these points are unassailable. See pages 296 - 298 of the printed record. I agree with his conclusions. There was however no appeal on these matters. Issue one as formulated by learned counsel for the Appellant turned on the failure of Chief Fagbami and the Family Representatives to append their signatures on the conveyance, Exhibit C1. Their contention is that if the document was genuine, their signatures would have been on it and not just the words "sgd" and that the learned trial judge was wrong in relying on the presumptions in Sections 123 and 150 (1) of the Evidence Act in reaching the conclusion that the documents were valid and in entering judgment in favour of the respondent. On this, the learned trial Judge held:
"Looking again at this Conveyance of 1945, I see that the names of all those six persons who are said to have signed for and on behalf of the Oloto Family, are written out in the Testimonium Clause with the letters 'sgd' indicating that they had signed next to those hand written names. Their signature is also said to have been witnessed by a certain Samuel Ola Fabiyi, an accountant of 2 Strachan Street, Ebute Metta...the document is a photocopy of the copy registered at the Land Registry in Lagos. The registered copy had been received at the Registry with the registration particulars (No 82 at page 82 in volume 697) endorsed thereon by a certain "JJ. Hunter" described in the endorsement as the Deputy Registrar.
By another endorsement made just below that containing the registration particulars, JJ Hunter went on to show that this copy he was receiving for registration was a "certified true copy"
What this means is that it was not the original copy of that original version. This is in keeping with the provision of the law; with the due process of law. In this respect, Section 81(1) of the Registration Titles Law, Chapter R4 of the Laws of Lagos State 2003."
The learned trial judge referred to various other laws including Section 70 of the Registration of Titles Law and the Land Instruments Registration Law,
Chapter L58 Laws of Lagos State 2003 signed into law in 1925 and came to the conclusion that the law as at 1945 when Exhibit C1 was executed and registered, merely required the registration of a certified true copy after comparison with the original which was usually returned to the person applying for registration. The learned trial Judge was of the view that in those days, there were no computers or photocopying machines. The original copy which was duly executed was typed out and where signature were supposed to be, they append the letters "sgd" to show that the document was duly authenticated. It is then the duty of the Registrar to compare the original and the copy and to ascertain its validity including due execution. Once he is satisfied as to its validity, he shall certify the copy by writing on it "certified true copy" and appending his signature thereto. His Lordship was of the view that it is that certified true copy that is pasted or bound in one of the registers and that the original document is returned to the applicant. It is a copy of this certified true copy with the letters "sgd" that was tendered in evidence. Learned counsel for the appellant did not agree with the views of the learned trial Judge. His contention was that the conveyance was not signed; that the vendors were literate and able to sign the conveyance. He tendered as exhibits documents executed by the vendors to buttress his argument that they are literate and can sign their signatures' The learned' trial judge dismissed these arguments and the evidence of the handwriting expert CW1 as irrelevant because it was never the case of the Respondent that the conveyance was not signed.
The Appellant however contended that since in their view the conveyance was not executed, the learned trial judge was wrong in relying on the presumptions in Sections 123 and 150(1) of the Evidence Act in holding Exhibits C1 and C15 valid and in entering judgment for the Respondent based on these exhibits.
Section 150(1) of the Evidence Act provides:
"When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity were complied with."
The question however is whether there was evidence that the official act of registration of the
conveyance Exhibit C 1 was done in a manner substantially regular with the requirements of the law. The contention of the Appellant is that there was no evidence of such substantial compliance as could have warranted the invocation of the presumption of regularity in Section 150(1) of the Evidence Act. In coming to the conclusion that the registration was regular, the learned trial judge relied on Section 109 of the Registered Land Law which provides as follows:
"1) Unless the Registrar under the powers conferred by this Section dispenses with verification, the parties executing any such instrument shall appear before the Registrar or such other person as he may require or approve; and, if they are unknown to the Registrar or other person before whom they appear, they shall be accompanied by a credible witness or credible witnesses as the case may require for the purpose of establishing identity.
2) The Registrar or other person before whom any party appears shall satisfy himself as to the identity of the person so appearing before him; and after ascertaining that such party has freely and voluntarily executed the instrument, the Registrar or such other person, as the case may be, shall prepare and sign a certificate to that effect. Any such certificate may be endorsed on or be attached to the instrument to which it relates."
It was contended on behalf of the Appellant in his brief as follows:
"It is clear from the provisions of this law that unless the Registrar dispenses (there is no evidence of such here) with the requirement of verification of the identity of the applicant for registration, the law requires that the identity of such a person must be verified by the Registrar who is further required to issue a certificate to that effect, to be endorsed on or attached to the instrument to which it relates.
Exhibit C1 carries no such endorsement and no certificate of verification relating to it was produced in evidence either.
But perhaps even more crucially, on Exhibit C1 is an entry by J. J. Hunter affirming that the document was delivered for registration by "Vincent A' Savage, Barrister and Solicitor". That entry does not indicate on whose behalf V. A. Savage Esq. was acting at the time he delivered the document for registration. V. A. Sauage Esq. is not a party named in the conveyance. Whilst it is not our intention in any form or manner whatsoever to impugn the manner of that solicitor's execution of his brief, the point nonetheless must be made that there is no evidence that the Registrar, with all due respect to him, complied at all, much less substantially with the provisions of the law which requires that;
i. It is the parties themselves who executed the instrument who shall appear before the Registrar who must verify their identities; and
ii' The Registrar shall ascertain that they freely and voluntarily executed the instrument.
That the learned trial judge acknowledged that these provisions of the law are mandatory and must be strictly complied with is seen in her reference to "these strictures of the law" which show "the length to which the Registrar is to go in order to satisfy himself or herself that the original copy of the document was validly made before he/she can register a copy thereof at the Lands Registry".
As the tenor of the law in this regard is mandatory as to the appearance of the parties executing the instrument (for good reason avoid impersonation) before the Registrar, V. A. Savage.
Esq.'s role as a Solicitor we respectfully submit, could not validly have extended beyond accompanying his client to the registry for the purpose of identifying him to the Registrar. He could not by himself and in his client's absence submit the instrument for registration as J. J. Hunter's entry appears to suggest.
On the state of affairs therefore, where if one might respectfully ask, is the evidence of compliance with the due process of authentication or indeed substantial compliance with the law as to justify the invocation of the presumption of regularity? If there is no substantial compliance with the law, there can be no presumption of regularity".
I agree with learned counsel on the arguments ably set out above. The learned trial judge in her judgment set out fully the provisions of Section 109 of the Registered Land Law and then concluded that the provision shows the length to which the Registrar is to go in order to be satisfied that the original copy of the document was validly made before a copy thereof can be registered. Was there evidence to show that the Registrar went through those lengths? The learned trial Judge did not point to any evidence to show that the law was substantially complied with justifying the application of the presumption in Section 150(1) of the Evidence Act. Put differently, the allegation by the Appellant that Exhibit C1 was not signed by the vendors amounted to a rebuttal of the presumption of regularity placing on the Respondent the burden of adducing evidence that the official act of authentication and registration of the Exhibit was done in substantial compliance with the law. Buhari v. Obasanjo (2005) 13 WLR (Pt. 941) 1 @ 193; INEC v. Anyimba Ray (2004) 14 NWLR (Pt.892) 92 @ 130; Maduabum v. Nwosu & Ors (2009) LPELR-4455(CA)
The Appellant had denied that Exhibit C1 was executed by his family.
This called into question the genuineness or validity of the Exhibit. The Respondent could not therefore have stopped at the tendering of the certified true copy which did not bear the actual signatures of the vendors. It should have tendered the original copy of the conveyance said to have been returned to the applicant after registration. Having not produced the original bearing the signatures, can the Respondent rely on the presumption in
Section 123 of the Evidence Act? The Section provides:
"Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court on the particular case considers to be proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested".
From the wordings of the Section above, for the presumption to apply the document must not only carry a signature or handwriting, the "particular person" whose signature or handwriting is endorsed on the document must be known and named. Considering that the presumption is a rebuttable one, it is only where the signatures of the vendors are shown on the conveyance that the burden would shift on the Claimant to rebut the presumption if he could.
The Appellant in his brief of argument put the matter thus:
"In attempting to justify her invocation of this presumption, the learned trial judge cited the Supreme Court decision in Godwin Nsiegbe v. Obinna Mgbemena (2007) 10 NWLR (Pt. 1042) 364, 380. However, unlike the present case in which Exhibit C1 was not signed at all (contrary to the requirement in Section 123 of the Evidence Act), the document in question in the Nsiegbe case (supra) which is also reported in (2007) ALL FWLR (Pt. 372) 1769, was thumb-printed which means it was duly signed or executed. Confirmation of this fact may be found at page 1785 of the judgment wherein it was stated thus inter alia; "...the latter gave him a receipt which was also thumb-printed by the 2 plaintiff/appellant".
The Nsiegbe case in effect complied with Section 123 and the invocation of the presumption therein, was therefore unassailable. The same cannot be said for the instant case in which the document was not signed at all.
.......What in our respectful view, is much more apposite to the present case and that provides a more useful guide in gauging the correctness of the lower Court's invocation of the presumption, is the Supreme Court's decision in Agbonifo v. Aiwereoba (supra). In that case too, the signatures on a document of title to land that was over twenty years had been denied, and the Court of Appeal had invoked the presumption in Section 122 (later Section 123) of the Evidence Act in favour of the document. In reversing the decision of the Court of Appeal, the Supreme Court after reiterating that the presumption thereby raised, is a rebuttable one, had this (at page 342 supra) to say further:
"Also, it is settled that conflicting presumptions neutralise each other and leave the case at large to be determined solely on the evidence given: ... in other words any such presumption that could have operated in favour of the respondents would be neutralised by the presumption under Section 148 (d) of the Evidence Act..."
"Note: Section 148 (d) was later to become Section 149 (d).
It is both significant and pertinent for us to point out at this stage that one thing stands out in the apex Court's decisions in both Nsiegbe (supra) and Agbonifo (supra) and that is that in the two cases, the documents in question, unlike in the present case, were duly executed in one form or the other. In the former, the document was thumb-printed and in the latter, it was duly signed. It is also interesting to note that
Exhibits C15 & D2 respectively, both tendered by the Respondent, are like Exhibit C1 certified copies of registered documents, but they are both signed!
It is thus our respectful submission that the presumption in Section 123 of the Evidence Act ought never to have been invoked in the first place as we have echoed all over this brief, or if at all it was to have been invoked because Exhibit C1 was over twenty years, then the presumption ought to have been deemed rebutted by reason of its failure of execution.
Furthermore, applying the decision in Agbonifo (supra) as quoted above to the present case, whatever presumption under Section 123 of the Evidence Act could have been raised in favour of Exhibit C1 was deemed or ought to have been treated as cancelled by Section 149 (d) of the same Act. Why? After quoting copiously from cited sections of the Registration of Titles Law and the Land Instruments Registration Law both of Lagos State, the learned trial judge stated that;
'The original, after having been "sighted", is returned to the person entitled to custody of the same' by the Registrar of Titles".
Undoubtedly therefore, the learned trial judge was satisfied that the original copy of Exhibit C1 which going by the assumptions of the learned trial judge, was ostensibly signed. As the late Coker was the beneficiary of the grant contained in the grant, it stands to reason and logic that he was the person who went to register his interest and to whom the all-important original copy which bore proper signatures, was returned by the Registrar. As the Respondent was the party propounding the document in its favour and on whom the burden of proving a valid transfer of title lay, the Respondent we respectfully submit was duty-bound to either produce that original copy in evidence to enable the honorable Court ascertain whether or not it was duly signed, or at least to offer explanations for the failure to produce it in evidence.
As the Respondent failed to do either of the above, whatever presumption that could have inured to the benefit of the document under Section 123 ought, we submit with respect, to have been treated as cancelled by the presumption in Section 149 (d) of the Evidence Act which provides in sum that where a party fails to produce a material document in its custody, the contents of that document will be presumed to be against him. It is instructive to note that DW2 the son of the late Coker who acted on behalf of his late father's estate and who testified on the Defendant's behalf, offered no explanation as to the whereabouts of the original copy of Exhibit C1 which presumably carried the signatures of the vendors."
With due respect to learned counsel for the Respondent, I find the above submissions of learned counsel for the Appellant sound. Having failed to tender the original copy of the conveyance containing the actual signatures of the vendors, the presumption in Section 123 of the Evidence Act cannot be invoked.
Issue one must consequently be answered in the negative. In the light of the facts and the evidence, the lower Court's reliance on the presumptions raised in Sections 123 & 150 (1) of the Evidence Act is not justifiable. Issue one is resolved in favour of the Appellant.
That is however not the end of the matter as there is still issue two whether the lower Court was right to have sustained the plea of laches and acquiescence against the Appellant. Learned counsel for the Appellant in his brief commended highly the learned trial Judge's exposition of the law on laches and acquiescence. Their grouse however is that the principles were wrongly applied in the instant case. The views of the learned trial judge on the defences of laches and acquiescence are at pages 306 - 315 of the printed records. The learned trial judge very meticulously set out the relevant depositions of the Appellant and his cross-examination on these defences. After examining the law on laches and acquiescence as considered by the Supreme Court in O. Solomon & Ors v. A.R. Mogaji & Ors (1982) NSCC 400, the learned trial Judge held:
"In this present case, it is clear to me that the Oloto Family was always aware of the presence of the Defendant on the land. The Claimant has shown, quoting a Yoruba adage that he refrained from taking action until after he had assumed the position of Oloto. But then, other members of the Family who brought the issue to his attention as he says could have taken action well before him. Indeed and when asked, the claimant had answered very categorically,
We took no action.
The Family, including previous Olotos, obviously preferred to let the Defendant be, just as they let Mr. Coker be.
What is more, the testimony of the defence witness, Mr. Nnadozie, on the huge amount of money invested on the land, and that the land has become the church's established place of worship, has not at all been rebutted. There is not a single piece of evidence contradicting these.
In view of all these circumstances, the Court of equity will most certainly have intervened to stop the Oloto Family, as represented by the claimant from taking a belated action to evict the Defendant from the land. And so even if I had found that the claimant's family always remained the owner of the land (and I have not), this action would still have failed as those equitable defences were very much open to the Defendant, and would have come to its aid."
Learned counsel for the Appellant in his brief argued that the learned trial judge's views suggested that the Respondent and its predecessor in title had been in physical possession of, and had been engaged in visible activities on the land in dispute before 1990. Counsel argued that neither the Coker Family nor the Respondent had engaged in any noticeable acts on the land in dispute of which the appellant's family could properly be said to have had notice and to which they could be accused of having acquiesced. He pointed out the cross-examination of DW2 where he claimed he avoided the question put to him that the Coker Family was never put into possession. Counsel also argued that construction activities by the Respondent only commenced in 2006 when the building approval was first obtained. In arguing thus, learned counsel appeared to have ignored the evidence led on the part of the Respondent and the answers given by the Appellant under cross-examination which supported the view that the Respondent and his predecessor in title were indeed in possession and that activities were on going on the land to the knowledge of the Appellant's Family long before the Appellant ascended the throne. The Appellant led no evidence in rebuttal of the claim of the Respondent that his predecessor in title remained in possession of their land purchased in 1945 and had since demarcated the land into parcels which had been sold and has long been developed and built upon by the purchasers without any land remaining undeveloped in the entire area.
The evidence of DW1 under cross-examination did not make it crystal clear as claimed by learned counsel for the Appellant that the respondent's construction activities on the land in dispute did not commence until 2006. On the contrary, DW1's testimony made it clear that they had been building on the land and that the building plan obtained in 2006 was in respect of the current construction going on in the land. DW1 testified further that the land had become the church's established place of worship. A place of worship is not an activity that can be hidden from neighbours and persons claiming ownership of the land. The cross-examination of CW2, the Appellant removed any doubt as to whether the Oloto Family knew of the activities of the Respondent on the land long before 1999 and took no step to stop it.
Question: Since 1945, you did not take any step until 1999 when you filed this action.
Answer: I had not been capped then. We took no action.
Question: Including the Defendant's land is fully developed.
Answer: I have nothing to say to that
Question: From 1945 until 1980 when the Defendant purchased from Coker is a time of 35 years. In these 35 years, you did not query Coker or the Defendants and they have been developing the land.
Answer: As the Yoruba say, "If any (sic) could has not grown from to the position of power he can never ask for it".
Question: From 1980 till 1999, 19 years you did nothing. You did not stop the Defendant from development the land.
Answer: I came to the throne in 1990. I can never start doing anything from the period I ascended onto the throne.
Question: Before you became Oba in 1990, there was an Oloto before you. Who was he?
Answer: E. Jas Ogundimu.
Question: His name appears on Exhibit "V7" and he did not take any step to offset the conveyance.
Answer: The people who prepared that conveyance never signed it. Why didn't they sign if what they did was truly in the name of the family? They should have signed.
It is obvious then that the Family knew of the conveyance to Coker from whom the Respondent bought the land. If there was any problem with the conveyance, for reasons best known to the family and its heads prior to 1999, no action was taken to stop Coker family from partitioning and selling off the land to various purchasers including the Respondent.
It was simply too late in the day for the Appellant to ascend the throne in 1990 and attempt to wrestle the land from the Respondent after it had spent so much money developing the land. Notwithstanding that some of the development took place during the pendency of the suit, the fact remains that between 1980 and 1999 when the suit was instituted; a lot had been done on the land. In his written deposition in paragraphs 11 and 12 at pages 11 - 14 of the printed record DW1 stated thus:
"11. The defendant sand filled the pit on the land at great expense of money and materials. It erected a very big church on the land with infrastructures and assets worth more than N5 billion and as of today more than N12 billion naira. Thousands of worshippers resort to the church on the land on Sundays, Monday, Thursdays and on other days the church members carry out various religious activities since 1980..."
12. The Claimant knew about the defendant's possession of the land and its numerous activities on the land. The claimant is aware or ought to be aware that the structures erected on the land, such as buildings, offices blocks and electronic communication have cost the defendant large sum of money to put up and maintain. The claimant stood by since 1980 and allowed the defendant to spend money to its detriment only to wait until 1999 to claim the land."
The cross-examination of DW1 is at pages 236-240 of the printed record. Learned counsel for the claimant concentrated all his effort in showing that an approved plan for the church was obtained in 2006 and that it was at that time construction started on the land. This could not have been in view of the claim of the appellant that it was when he ascended the throne in 1990 that information on the activities of the Respondent on the land was brought to his notice. Besides, DW1 emphasized that development of the land had been ongoing since 1980 and that the approved plan of 2006 was in respect of the new building being erected. It is noteworthy that no questions were put to the witness with respect to the averments in paragraphs 11 and 12 of his deposition that the claimant was aware of their activities on the land since 1980 and that no steps were taken to stop them.
In the case of Akanni & 7 Ors v. Makanju & 2 Ors (1978) 11 -12 SC the Supreme Court per Obaseki JSC at pages 16-17 paras. F-C observed:
"In considering the equitable doctrine of laches, the Court does not act only on the delay by the plaintiffs but must also consider (1) acquiescence on the plaintiffs' part and (2) any change of the position that has occurred on the defendants' part. If the plaintiff by his conduct has done what may be regarded as a waiver or by his conduct and neglect has put the other party in a position in which it would be unreasonable to place him if the remedy were afterwards to be asserted the doctrine of laches would apply."
Doubtless, the Oloto Family which, the Appellant represents did not only delay in asserting their rights; they acquiesced in the acquisition of their land by Adekunle Coker whose title deed was registered with the Governor's consent as far back as 1945. The land was partitioned by the Coker family and sold to various purchasers including the Respondent.
The Appellant's family took no steps to assert their right. The Respondent's title was registered in 1980.
They went into possession and established a church on the land. The family took no steps to reclaim their land but rather watched the Respondent expend huge sums of money developing the land. They finally instituted action in 1999, after a period of 19 years. DW1 Mr. Nnadozie had given evidence of the huge amount of money invested on the land, and that the land had become the church's established place of worship since 1980. It would amount to fraud on the Respondent for the appellant's family to be allowed at this point to set up their rights after allowing the Respondent spend so much money developing the land. See Ogunko v. Shelle (2004) 6 NWLR (Pt. 868) 17. The Court of equity would come to the aid of the Respondent and hold it unconscionable to uproot the Respondent from the land at this point. The lower Court was right in holding that the defences of laches and acquiescence can avail the Respondent.
Issue two is resolved in favour of the Respondent.
In the final result, the appeal succeeds in part. The aspect of the judgment of the lower Court holding that Exhibits C1 and C 15 are valid based on the presumptions in Sections 123 and 150(1) of the Evidence Act is set aside. Subject to this the judgment of L. A. Okunnu, J in Suit No. LD/1149/99 delivered on the 5th day April, 2011 is affirmed.
SIDI DAUDA BAGE, J.C.A.: I had the singular honour of reading in draft, the lead judgment, just delivered by my learned brother Honourable Justice CHINWE EUGENIA IYIZOBA, JCA, to which I adopt all the reasoning and conclusion contained therein. Let me add a few words on the equitable defences in land case, when it will avail a Defendant. The Supreme Court laid the guide in the case of POPOOLA VS ADEYEMO (1992) 8 NWLR (Pt 257) 1 on what a Court of law will consider among other things:
a) "When the land was bought
b) When the building of the house commence; and;
c) When it was concluded. If the Court comes to the conclusion that the Plaintiff did not assert his right to the property within a reasonable time as expected of a reasonable man, he will be deemed to have abandoned his right to the property." See also the decision of this Court in ADENIRAN VS ALAO (1992) 2 NWLR (Pt. 223) 350; IKONNE VS WACHUKWU (1991) 2 NWLR (Pt. 172) 314.
Also before a party can avail himself of the defences of laches and acquiescence, see the elements listed in the case of (MOSS VS KENROW (NIG) LTD (1992) 9 NWLR (Pt. 264) 207, by the Supreme Court as follows:
a) "That the Defendant was in fact mistaken as to his own rights over the land
b) That, the Defendant had in reliance of his mistake expended money on the land;
c) That, the Plaintiff knew of the existence of his own right which is consistent with the right claimed by the Defendant over the land.
d) That, the Plaintiff knew of the mistaken belief by the Defendant of his right.
e) That the Plaintiff encouraged the Defendant's expenditure of money."
On the more detail reasoning contained in the leading judgment, I also hold that, the appeal succeeds in part. The aspect of the judgment of the lower Court holding that Exhibits C1 and C15 are valid based on the presumptions in Section 123 and 150 (1) of the Evidence Act is also set aside by me. I also affirmed the judgment of the lower Court, subject to what is set aside.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft of the lead judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA JCA and I adopt the judgment as mine with nothing to add.?
Dotun Oduwobi, Esq. with him, S. Etaifo, Esq. and H.O. Okusade (Miss) For Appellant
G.I.J. Akhigbe, Esq. For Respondent