The plaintiffs sued for a declaration of title to a piece of land in Surulere; and a rectification of the register of titles in respect of title No.MO.5964.

Plaintiff proved the sale to him of the land in dispute by the Oloto Family. On the pleadings before the close of the plaintiffs case, the defence averred that the second defendant was claiming title through two others and also agreed that his original predecessors in title derived title from the Oloto Family. It therefore became a straight issue whether the Oloto Family sold a large area of land to one J.W. Martins in 1910, whose children subsequently sold a por¬tion to one L.O. Fadipe in 1940, and who in turn, sold to the second defendant in 1959. At the close of the plaintiff's case, it became clear that the portion of land in dispute was not part of the portion sold to J.W. Martins. The defendant then amended the statement of defence, and pleaded that the second defendant would be relying on long possession, laches, acquiescence and undue delay. Throughout the plaintiff's evidence, this new defence was not brought to his knowl¬edge under cross-examination of the plaintiff or his witness, by the 2nd defendant’s counsel. Evidence which the second defendant gave in support of long pos¬session, laches, acquiescence and undue delay, seemed to be that although the land had not been developed at all, he used it sometime between 1959 and 1965 to build some temporary stores in which he kept materials for a building which he erected on a land adjoining the portion of land in dispute. Neither the plaintiff nor the then Chief Oloto, who gave evidence, were questioned about this temporary use. Fadipe his predecessor in title did not give any evidence of acts of possess¬ion, except as the learned trial Judge himself stated in his judgment, but tendered a site plan. The plaintiff also gave evidence that the fence erected around the land was done whilst this case was pending in court. This evidence was not challenged. The learned trial Judge, however, held that since 1940, when Fadipe purported to purchase the land from the children of J.W. Martins, who had no right to the property until he sold to the second defendant in 1959 and the plaintiff purchased in 1965, there was in favour of the second defendant, an undisturbed possession of the land for 25 years which supports and amounts, according to the Judge, to long possession, acquiescence, laches and long delay, and therefore entered judgment for the second defendant.

With regards to the claim for rectification of the register of titles, the learned trial Judge found that it is a fact that the land certificate issued to the second de-fendant was irregularly issued and therefore invalid. He however held that he could not order a rectification of the register under the relevant portion of the Registra¬tion of Titles Act Cap.181 of Vol. IV of Laws of Nigeria and Lagos 1958 Section 61(1).

This appeal is against that decision.