⦿ CASE SUMMARY OF:
Alhaji Wahab Irawo & Anor v. Adebayo Adedokun & Anor (2004) – CA
by PipAr Chima
⦿ LITE HOLDING
⦿AREA OF LAW
Alhaji Wahab Irawo & Anor
Adebayo Adedokun & Anor
(2004) JELR 44981 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
The appellants who were the plaintiffs in the court below had through their writ of summons claimed against the defendant in that court (then known as Madam A. Ejide) the following reliefs:- (1) A declaration that the plaintiffs are entitled to right of occupancy to all that piece or parcel of land situated, lying and being at Nos. 10 and 11, Owokoniran Street, Idi-Araba, Surulere, Lagos State. (2) An order for the rectification of the Registrar (sic) (in respect of the Land Certificate Nos. MO2790 in plaintiffs’ favour as the registered proprietor of the fee simple estate of the land in dispute. (3) N500,000 damages for trespass committed by the defendant, her servants and agents on the said land. (4) A perpetual injunction restraining the defendant, her servants and her agent or otherwise from entering or doing anything on the said land in dispute.
At the end of the trial and the addresses of counsel on both sides, the learned trial Judge in a reserved judgment delivered on the 3rd of March, 1995, dismissed the claims of the plaintiffs in their entirety. Dissatisfied with the decision, the plaintiffs/appellants entered a notice of appeal against it. That notice of appeal dated 16th March, 1995 and filed on 17th March, 1995 carries only one ground of appeal – the omnibus ground.
With the leave of this court, four additional grounds of appeal were filed. I say there are only four additional grounds of appeal although on the body of the process filed on 17th November, 1999, there appear five additional grounds. The fifth additional ground of appeal is a repetition of the only ground stated on the notice of appeal filed on 17th November, 1999.
1. Whether the preponderance of evidence is not in favour of the plaintiffs as to entitle them to judgment for declaration?
2. Whether refusal of rectification on grounds of insufficiency of evidence and non-joinder of the Registrar of title is proper?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Evidence of action of ownership and possession, given by him, even if it is believable, is an account of recent events which are within living memory and therefore very much inconsistent with averment of immemorability. From a review of the evidence led in the court below, I have no hesitation in coming to the conclusion that the learned trial Judge was right when she held that the plaintiffs/appellants failed to prove their root of title.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Rectification is a sort of equitable relief. It may be given in appropriate cases where, for example, a successful litigant in a land matter had prayed for it so that his victory against a defendant who had obtained a deed of conveyance from another person other than the successful plaintiff might not be rendered nugatory. As I have said, it will only be made in an appropriate case. Indeed, there is jurisdiction in the courts to rectify any instrument such as a conveyance where it established that there was a crucial mistake or its existence or coming into being is fraught with some illegality, its nuisance value will be detrimental to the interest of a successful party. To justify the court in ordering rectification of an instrument, the evidence must be clear and unambiguous that the person seeking it is in the eye of the law, the legal owner of the property the deed of conveyance of which is purportedly standing in the name of the party adjudged not to be the owner or that he is a trespasser.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The law does not permit a plaintiff to rely on the weakness of his adversary’s case, unless same supports his claim. – Aderemi JCA. Irawo v. Adedokun (2004)
The treatment of traditional evidence or history has over the years come to be regulated by what I may call the rule in Kojo II v. Bonsie (1957) 1 NMLR 1223. The proposition of law relating to traditional evidence as decided in Kojo II v. Bonsie is that where there is a conflict of traditional history, demeanour by itself, is of little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. – Aderemi JCA. Irawo v. Adedokun (2004)
What are the averments which a party relying on traditional histories or evidence must incorporate into their pleadings? The Supreme Court in Lebile v. The Registered Trustees of Cherubium and Seraphim Church of Zion of Nigeria, Ugbonla and Ors. (2003) 2 NWLR (Pt.804) 399 per the judgment of Uwaifo, J.S.C. provided the answer at pages 418/419 thus: “It cannot be too often said that a party who relies on traditional history (which a claim to the finding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous claim of devolution, not allowing there to be any gap or leading to a prima facie collapse of the traditional history. The history must show how the land by a system of devolution eventually came to be owned by the plaintiff.” – Aderemi JCA. Irawo v. Adedokun (2004)