Musiliu I. Bashua V. Dr. Oladipo Maja (1976)

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SIR UDO UDOMA, JSC 

This appeal is against the judgment of George, J., in the High Court of Lagos, Suit No. LD/565/72, wherein Dr. Oladipo Maja as plaintiff, herein respondent, claimed against Musiliu I. Bashua as defendant, herein appellant, the following:-

“(1) Declaration of title to the piece or parcel of land situate at Bashua Street, Shomolu, Lagos State, Nigeria. (2) Order of injunction restraining the defendant from committing trespass to the said land.   PAGE| 2   (3) Damages for trespass in the sum of £100. (4) Possession of the said piece or parcel of land.”  Pleadings having been ordered, were duly filed and delivered.

In view of the submissions made to us by counsel in the appeal, and the nature of the controversy between the respondent and the appellant and the manner in which pleadings appear to have been settled, we think it expedient for the proper appreciation of the issues involved in the appeal, to set out in extenso hereunder the pleadings of the parties in the suit.    In support of his claims, the respondent pleaded as follows:- “(1) The plaintiff is a Medical Practitioner. (2) The Alashe Family of Ojuwoye became owners from time immemorial under native law and custom of a large area of land (hereinafter called “the land”) whereof the land in dispute forms a portion.

(3) The land in dispute (hereinafter called “the land in dispute”) is described on a survey plan and therein edged RED attached to a Deed of Conveyance dated 7th day of December 1971, made between Sanusi A. Bashua, J.A. Eshubi, N.A. Kekere-Ekun, Abu Amore, M. Adisa Bashua and R.A. Adewale as vendors of the one part and Musiliu I. Bashua, to wit, the defendant, as purchaser of the other part and registered as No.70 at page 70 in Volume 1325 of the Land Registry Lagos. (4) The said vendors who are members of Bashua Chieftaincy Family executed the Deed of Conveyance aforesaid for themselves and on behalf of the Bashua Chieftaincy Family of Lagos. (5) The Alashe Family of Ojuwoye referred to in paragraph 2 above in Suit No.LD/1950/1957 to the knowledge of Bashua Chieftaincy Family litigated over the land or a large area thereof.

(6) The said Bashua Chieftaincy Family acquiesced in the role played by Alashe Family in the Suit No. LD/1950/1957 and stood by with full knowledge of the proceedings in the said suit.   (7) The plaintiff acquired his right and title to areas of the land by virtue of a Deed of Conveyance dated the 13th April, 1970 registered as No.72 at page 72 in volume 1317 and another Deed of Conveyance dated the 17th January 1972 registered as No.90 at page 90 in Volume 1377 both of the Lands Registry, Lagos. (8) In several court actions, one Aina Edu represented the Alashe Family in matters pertaining to the land. (9) The Alashe Family is also known as Ifadu Alashe Family. (10) The plaintiff will rely on the following suits which pertain to the rights and interests of the Alashe Family in the land:   (a) Supreme Court of Nigeria, Lagos Judicial Division.. Suit No. 372/28 (b) -do-………………………………. “ ” 165/29 (c) -do-………………. “ ” 67/1946 (d) -do-………………………………. “ ” 272/51 (e) High Court of Lagos…………. “ ” LD/150/57 (f) Supreme Court Appeal………. “ ” SC/60/71   (11) The plaintiff’s predecessors-in-title were in possession of the land in dispute exercising full right of ownership thereon. (12) The plaintiff after purchasing the land in dispute as hereinbefore averred immediately went into possession thereof and exercised acts of ownership thereon by himself and through his servants and agents.

(13) The defendant without lawful authority has entered upon the land and committed trespass thereto by digging foundation thereon for the erection of a building or buildings. (14) The defendant will continue to commit acts of trespass to the land unless he is restrained by an order of injunction made against him by this Honourable Court. (15) The Bashua Chieftaincy Family is estopped from denying the title of the Alashe Family to the land of the said Alashe Family aforesaid by virtue of several decisions of the Supreme Court of Nigeria, Lagos Judicial Division, the High Court of Lagos and the Supreme Court of Nigeria respectively aforesaid.   (16) The land of Alashe Family is included in the area of land appearing on the plan known as Sheet No.342/912 published by the Director of Federal Surveys, Lagos relating to land at Mushin-Ikeja-Agege Districts of the Lagos State.”

The averments of the appellant in answer to the allegations in the Statement of Claim contained were in the following terms:-   “STATEMENT OF DEFENCE SAVE AND EXCEPT as is hereinafter expressly admitted, the defendant denies every allegation of fact contained in the plaintiff’s Statement of Claim as if each were set down and specifically denied.   1. The defendant admits paragraphs 1, 3, 4 but denied paragraphs 2, 5, 6, 7, 8, 9 to 16 of the plaintiff’s statement of claim and puts him to the strict proof of the various allegations contained therein. 2. The defendant states that the land the subject matter of this action belongs under native law and custom to the Bashua Chieftaincy Family from time immemorial and forms part of a larger area of land belonging to the family. 3. The said Bashua Chieftaincy have from time immemorial been in continuous and uninterrupted possession of the said land exercising all maximum rights of ownership all over the whole land to the knowledge of the plaintiff.

4. Sometimes in 1913, the Government by Notice dated 29/10/1913 acquired a large area of land including the land in dispute, and by a letter dated November 27th, 1913, Oduka claimed compensation for the Bashua Family. The defendant will rely on the letters and all documents in connection with the said Notice of Acquisition. 5. The Bashua Chieftaincy Family have had various litigations over their land and will rely on the judgment in Suit Nos.74/26, HK/63/61, SC/376/63, SC/583/65, FSC/276/63 at the trial. 6. In Suit No.IK/227/65, the Bashua Chieftaincy Family successfully brought an action against Alhaji A. W. Elias for trespass, damages and injunction, over a large area of land including the land the subject matter of this action. The defendant will rely on the said judgment and the deed of conveyance dated 2nd day of May, 1958 relied upon by the defendant in that suit.     

7. The Bashua Chieftaincy Family have been exercising open acts of ownership in possession for a long period of time over large area of land including the land in dispute to the knowledge of the plaintiff’s predecessor- in-title and the defendant will rely on the long possession by the defendant’s predecessors in title to the land in dispute. 8. By a Deed of Conveyance dated 7/12/71 and registered as No.70 at page 70 volume 1325, the Bashua Chieftaincy family sold the piece of land in dispute to the defendant. 9. The defendant went into immediate possession and have since erected a building worth over £8,000 on the land. 10. The defendant will rely on all equitable defences including laches, long possession, acquiescence, stale claim and will contend that the plaintiff’s claim is speculative and should be dismissed.”

A cursory glance at both the Statement of Claim and the Statement of Defence discloses at once that both the respondent and the appellant rooted their title and founded their acts of possession in the land in dispute in the Alashe Family and the Bashua Chieftaincy family respectively.

The manner in which the pleadings were settled by both parties calls for a brief comment although we were not addressed by counsel on that issue. We hasten, however, to assure both counsel that our decision in this appeal will in no way be influenced by any apparent defects in the pleadings.    In paragraph 10 of the Statement of Claim, the respondent merely averred that he would rely on certain numbered judgments which “pertain to the rights and interests of the Alashe family in the land”. The nature and form such reliance would take whether by way of estoppel in pais or per rem judicatam or as acts of possession was not disclosed, nor were the names given of the parties directly involved in the suits resulting in various judgments sought to be relied upon. By reason of such insufficiency of particulars, it was clearly impossible on the face of the pleadings to identify with precision the parties directly affected by the said judgments.

Furthermore, in breach of Order 32 Rule 7 of the Old Supreme Court (Civil Procedure) Rules, which still operated in the State of Lagos in 1972 when pleadings were closed, and which Rule is now Order 17 Rule 3 of the now Rules of the High Court of Lagos State, which came into operation on 1st September 1973, the Statement of Claim concluded without stating specifically the relief claimed by the respondent; nor was it therein stated that the claim of the respondent was in terms of or per his writ of summons filed in the suit.     

That, of course, was an unsatisfactory manner in which to settle a Statement of Claim filed in a suit in court in a case of this kind; and the learned trial Judge would have been justified either to strike out the Statement of Claim or order that it be amended by leave on terms, if objections had properly been raised. We think that the learned trial Judge might probably have been more inclined to take the latter course having regard to the fact that even after the close of the case of the respondent leave was granted the appellant to amend his Statement of Defence by adding five new paragraphs thereto.    But the worse offender in this respect as to pleadings would appear to be the appellant.

In paragraph 4 of his Statement of Defence, the appellant averred that the land, a claim to the title whereof he was resisting and which he alleged had been bought by, and lawfully conveyed to him by the Bashua Chieftaincy Family was infact, in 1913, the subject of compulsory acquisition by Government for which Bashua Chieftaincy family, his vendors had claimed compensation. Surely an averment of that sort was sufficient to throw the appellant out of court, since he was not resisting the claim of the respondent as a government tenant, which if he did, might possibly have raised the issue of jus tertii in respect of the claim for damages for trespass; nor was any averment that the acquisition was later abandoned; or that the land in question was subsequently surrendered to Bashua Chieftaincy Family.

In spite of the unsatisfactory state of the pleadings having regard to these several defects, and neither party raising any objections , the learned trial Judge proceeded with the due hearing and determination of the case on the merits. And it was only during cross-examination that it was virtually dragged out of the first witness for the appellant that in fact the attempted compulsory acquisition by Government in 1913, was later abandoned by the withdrawal of the Notice thereof.

The learned trial Judge in the end accepted the evidence of the respondent and his witnesses and thereupon entered judgment for him, granted him a declaration of the title to the land in dispute, awarded him damages for trespass and granted him injunction and an order for possession against the appellant. Hence this appeal.    

On the evidence before the learned trial Judge, the case of the respondent in support of his claims put in proper form and correct historical sequence and perspective, was that the land, the subject-matter of the action and in dispute between him and the appellant was, prior to his acquisition of it for valuable consideration, a small portion of a vast area of land the absolute property of the Alashe Family of Ojuwoye; that the whole land, property of the Alashe Family, is situate at Igbobi and is known as Bajulaiye Village and Ijesha Village; that when Odun Ogun, the ancestor or predecessor in title of the Alashe Family of Ojuwoye was alive, originally the land of Alashe Family of Ojuwoye was even much larger than the  present area; and in extent used to cover the whole area known as Bajulaiye Village; Ijesha Village; and Oja (Awja) Village; that after Odun Ogun had been dead for several generations and Ifadu Alashe Family eventually succeeded to the property, in about 1890, permission in accordance with Native Law and custom was granted by Ifadu Alashe Family to Eletu Odibo Chieftaincy Family and Bajulaiye Chieftaincy Family to occupy and make use of the whole land as tenants – the land then involved being the vast area covered by Bajulaiye Village; Ijesha Village; and Oja Village – upon payment of the then usual customary rent.

It was the case of the respondent that in consequence of the said grant, there developed subsequently differences between Ifadu Alashe Family and the Eletu Odibo Chieftaincy Family, which gave rise to a number of court cases and culminated in the High Court of Lagos Suit No.LD/150/57 – Aina Edu for herself and on behalf of the members of the Ifadu Alashe Family v. Amusa Gbadesere, Chief Eletu Odibo Chieftaincy Family – which, to the knowledge of the Bashua Chieftaincy Family , resulted in a peaceful settlement on 2nd April, 1958, the terms whereof together with the plan of the land then in dispute as was partitioned between the two families being on 17th, July, 1961 by consent, made a judgment of the court by Alexander Bellamy, Ag. CJ.    

In support of this aspect of the respondent’s case, in addition to oral testimony, there were tendered the judgment of the court in that case together with the terms of settlement and the plan of the area then in dispute which was partitioned between Ifadu Alashe Family and the Eletu Odibo Chieftaincy Family, both which were marked, Exhibits ‘H’ and H1; a printed copy of the original Government map of the area known as Mushin-Ikeja-Agege Districts, first Edition, entitled Sheet 342/912, drawn and reproduced by the Federal Surveys Department and published by the Director of Surveys, Lagos in 1956, marked, Exhibit ‘C’ – the map bearing the imprint “Crown Copyright Reserved”; and the judgment in Suit No.67/1946 – Aina Edu (Head of Alashe Family) v. Abudulai Bamgbopa (the Chief Eletu Odibo) and 3 Ors. in the Lagos Judicial Division of the Old Supreme Court of Nigeria, wherein judgment for a declaration of title to “all that piece or parcel of farm lands situate at Igbobi district” was given in favour of the Alashe Family as against the Chief Eletu Odibo, the judgment in the case being marked, Exhibit ‘F’; and the plan in Suit No.272/51 – Aina Edu v. Amusa Gbadesere – which was marked Exhibit ‘G’.

A similar copy to Exhibit ‘C’ was also produced and tendered by the appellant and marked Exhibit ‘L’, the area of the land in dispute in Suit No.LD/150/57 and in Suit No.67/1946 being thereon clearly delineated and verged green. The land in dispute in Suit No.IK/155/67, N.A. Kekere-Ekun, Abu Amore and Dr. F.A. Bashua for themselves and on behalf of the Bashua Chieftaincy Family v. Safuratu Iyabo Balogun, Dr. Oladipo Maja, Chief Anidu Kasumu and S.A. Bashua was also thereon delineated and verged red. We shall have occasion to advert to this aspect of the case later when considering the whole of the evidence in the light of the submissions of learned counsel.  

PAGE| 8    The respondent also testified that in or about 1966, he purchased the land in dispute for valuable consideration from one Safuratu Iyabo Balogun, who had herself bought the same from, and had it conveyed to her by the Alashe Family of Ojuwoye, Mushin, but that before the conveyance to him could be executed, N.A. Kekere-Ekun; Abu Amore; Dr. F.A. Bashua and S.A. Bashua for themselves and on behalf of the Bashua Chieftaincy Family instituted Suit No.IK/155/67, in the High Court of Lagos, Ikeja Judicial Division, against him and Safuratu Iyabo Balogun, and 2 others, claiming, inter alia, a declaration of title to the land in dispute and damages for trespass; and lost, the court holding that the land in dispute was not the property of the Bashua Chieftaincy Family but of Alashe Family of Ojuwoye, Mushin.    

The land then in dispute in that case was shown verged red in Exhibits ‘C’ and ‘L’, being superimposition of the plan No.JJ.472/66 which was prepared by J.J. Madeiros in 1926. The judgment in the case having been delivered in December, 1969, whereby as stated, Bashua Chieftaincy Family lost the claim to the title thereof, he was able to obtain a duly executed conveyance of the land in question on 13th April, 1970 from Safuratu Iyabo Balogun, which conveyance was registered at Lagos as No.72 at page 72 in Volume 1317, Exhibit ‘A’. He immediately thereupon took possession of the land in dispute.    

Thereafter the respondent said he also secured for valuable consideration a Deed of Conveyance of the land in dispute, Exhibit ‘B’ dated 17th January, 1972 and registered at Lagos as No.90 at page 90 in Volume 1377, from Alashe Family of Ojuwoye, Mushin, Lagos. According to the respondent, his total land holding in the area is shown verged yellow on the plan, Exhibit ‘C’, being a superimposition thereon of the plan No.GF/202 attached to the conveyance, Exhibit ‘B’.    It was the case of the respondent that it was only in December, 1971 that the appellant without his leave or licence broke and entered into the land in dispute and therein dug foundations with a view to erecting and thereafter erected a building thereon in defiance of the respondent’s title and interest and in disturbance of his possession thereof.    

It was the respondent’s case that it was the digging of the foundation for building on the spot verged blue in Exhibit ‘C’, and appellant’s refusal to leave and to stop his building construction thereon when requested to do so, coupled with the appellant’s assertion that the land in dispute is and has always been from time immemorial the absolute property of the Bashua Chieftaincy Family and his obtaining a conveyance, Exhibit ‘K’ of the land in question from the Bashua Chieftaincy Family which had provoked him to institute the proceedings which have resulted in the appeal under consideration.

On the other hand, the appellant naturally resisted the respondent’s claim and, in his testimony in support of his own pleadings, said that the land in dispute has been from time immemorial the property of the Bashua Chieftaincy Family of which he himself is a member; that the portion occupied by him was sold and conveyed to him by a Deed of Conveyance, Exhibit ‘K’, dated 7th December, 1971 and registered at Lagos as No.70 at page 70 in Volume 1325 by the Bashua Chieftaincy Family, that he entered and took possession of the land thereafter and thereon erected a building; that the Lagos High Court Suit No. IK/227/65 – Anidu Kasumu for himself and on behalf of the entire members of the Bashua Chieftaincy Family v. Alhaji Waheed Elias – was about a vast area of land which included the land in dispute.   

 It was the appellant’s case that the land involved in that case was in Bashua Village and that the action was won by the Bashua Chieftaincy Family which, according to him entitled him to remain in possession of and to make use of the land in dispute.    In the course of their evidence, the appellant and his witnesses made certain important admissions in favour of the respondent which will be dealt with presently.

In support of his case, the appellant, as already stated, tendered inter alia, a copy of the Government map of Mushin-Ikeja-Agege Districts. It was marked Exhibit ‘L’. Thereon was delineated and verged green the area of land in dispute between Aina Edu (Head of Alashe Family), and Chief Eletu Odibo as well as the boundary of the land said to belong to Safuratu Iyabo Balogun and alleged to have been in dispute in Suit No.IK/155/67, which the Bashua Chieftaincy Family had lost, the latter area being verged blue thereon.

The judgment of the court in Suit No.IK/155/67 was later confirmed on appeal.    Curiously enough the land in dispute in Suit No.IK/227/65 was nowhere shown on the plan, Exhibit ‘L’, although the case was won by the Bashua Chieftaincy Family against Alhaji Waheed Elias, and, judging by the Statement of Defence, was one of the main planks of the case of the appellant.    Such was the nature of the evidence in the case before the learned trial Judge.

At the hearing of the appeal in hand, it was naturally the evidence of the respondent and his witnesses which had to be thoroughly and critically examined by learned counsel for the appellant since, as a rule of law, a plaintiff seeking a declaration of title to land must of necessity succeed on the strength of his own case.    In his submissions, Mr. Molajo, learned counsel for the appellant rightly, as he was entitled to do, attacked the evidence which was accepted by the learned trial Judge and the inferences drawn therefrom by him in reaching his decision. This was quite effectively done on the general ground that the judgment was against the weight of evidence. Indeed, that was the main ground argued before us in this appeal, all other grounds being treated as ordinary but important particulars of the main ground.    Learned counsel contended that the learned trial Judge misdirected himself on the evidence generally and therefore came to a wrong decision when he held that the Alashe Family were the original owners of the land in dispute even though the Alashe Family had failed to produce convincing evidence of acts of ownership.

He submitted that it was rather  the Bashua Chieftaincy Family of which the appellant is a prominent member, who were able to give convincing evidence of their ownership and possession of the said land stretching over a long period of time, including evidence of successful litigation over a number of years, which should have been accepted by the learned trial Judge as warranting the inference that the land in dispute was the exclusive property of the Bashua Chieftaincy Family.    

We do not think that this criticism of the judgment of the learned trial Judge is sound. It seems to us that there were three issues which had to be carefully examined by the learned trial Judge on the evidence as a whole and having regard to the way and manner the case was presented by both parties. There was the question of the identity of the land in dispute and the location of it in relation to

Other Citation: (1976) LCN/2186(SC)