Adepeju Odunsi V. Mr. Azeez Bamgbala & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The respondents who are plaintiffs in the High Court claimed from the appellant herein and one J .O. Fashuwope, declaration of statutory right of occupancy, forfeiture and injunction in respect of a parcel of land at Tabon-Tabon, Agege, Lagos State covered by the judgment in Suit No. IK/141/65 together with Survey Plan No. AL.63/1962 which was decided in their favour.

After pleadings were filed and exchanged by the parties, the case proceeded to trial and at the conclusion, the learned trial Judge, Martins. J. entered judgment for the plaintiffs and granted all the reliefs sought. The defendants not being satisfied with the decision, appealed to the Court of Appeal. The court below dismissed the appeal of both defendants save in respect of the order of perpetual injunction made against them by the learned trial Judge.

The appellant who is the first defendant in the High Court has further appealed to this court. Both parties filed and exchanged briefs of argument. Six issues for determination were formulated by the appellant:

“(i) Whether the judgment of the Court of Appeal was not wrong in law and must it not be set aside when that court in its lead judgment did not consider at all the grounds of appeal whether Exhibits D1-D4 were validly admitted before using the document to establish the case of the plaintiffs/respondents against the appellant;

(ii) Whether it is proper to use extrinsic evidence to alter or add to the terms of a transaction which has been reduced into writing contrary to section 131(1) of the Evidence Act

(iii) Whether the plaintiffs/respondents have sufficiently proved a grant of customary tenancy in their favour against the defendants/appellants

(iv) If the plaintiffs did not prove grant of customary tenancy, could a purported admission in the statement of defence and upon which no evidence was led, constitute sufficient credible evidence to rectify the case of the plaintiffs.

(v) Did the judgment produced in evidence reflect a proper application of the principles that should guide the court when considering onus of proof in actions for declaration of title to land

(vi) Whether it was right in law for the Court of Appeal in its lead judgment to go outside the issues pleaded by the parties in coming to its decision

Only one issue for determination was identified by the respondents namely:

“Whether on the pleadings and in the circumstances of this case, Exhibits D-D4 were not admissible documents and if they are not, whether in expunging them, there remains sufficient evidence on record to sustain the claim of the plaintiffs.”

The above question does not however cover all the issues raised in the grounds of appeal.

The plaintiffs who are respondents in this court instituted the action for themselves and as representing Bamgbala family of Tabon- Tabon in Agege, Lagos State. They claimed that the father of the appellant was their customary tenant on the land in dispute. He as a tenant owned a company known as “Royal Brothers Produce Store” which was shown on the plaintiffs’ survey plan No. AL.63/1962. The father of the appellant paid annual rents for the land to the plaintiffs until he died in 1975. The appellants stopped paying rents after the death of her father. The only receipts for payment of rents covered the periods 15/10/65 to 30/9/67 and they were issued to “Royal Brother Ltd.” See Exhibits “D” to “D4”.

The appellant claimed the land as belonging to her father from whom she derived her title by inheritance. She denied that her father was a tenant of the plaintiffs.

For a fuller understanding of the issues canvassed in this appeal, it will be necessary to set out some relevant paragraphs of the pleadings of both parties. They are paragraphs 3 -11, 15 and 16 of the amended statement of claim and paragraphs 1, 2, 3. 4. 5 and 6 of the statement of defence.

Amended Statement of Claim

“3, The plaintiffs state that their family owns the large parcel of land measuring about 6.962 acres situate, lying and being at Tabon Tabon, Agege, within the jurisdiction of this Honourable Court, which land is described in the Plan mentioned above.

4. The land the subject matter of this action which is described above was formerly a portion of the large tract of farm land owned by the Agbedeyi Family.
5. That under and by virtue of a receipt of purchase dated the 26th day of May, 1915, one Agbedeyi (now deceased) as Baale of Orile Agege and the then head of the said Agbedeyi Family with the knowledge, consent and approval of his family made an absolute sale of the portion of land now in dispute to one Amodu Gbamgbala (also now deceased) and put him in effective possession thereof.
6. That since the purchase until his death intestate in Lagos on or about the 17th day of April, 1937, the within named Amodu Gbamgbala (or Bamgbala) occupied the said land and exercised thereon all rights of absolute ownership, undisturbed and uninterrupted.
7. The plaintiffs are the children and grand children of the within named Amodu Bamgbala (now deceased).
8. Immediately after the death of their father intestate as afore mentioned, the plaintiffs, by rights of inheritance under native law and custom entered on the said land and have since been exercising all the diverse acts of ownership without disturbance from anyone.
9. The plaintiffs in exercise of their right of ownership have let portions of the said land to customary tenants, including the father of the first defendant who died in 1975.
10. That before the death of the father of the 1st defendant he never failed to pay his annual rent to the plaintiffs’ family and that this fact is within the knowledge of the 1st defendant, receipts showing such payments and letter of demand written by the said deceased Odunsi to the 2nd defendant are hereby pleaded.
11. That since the death of his father in 1975 the defendants have failed, refused and/or neglected to pay rent to the plaintiffs’ family despite repeated demands.
12. The plaintiffs state that in 1965, their family instituted action against Salami Agbedeyi in Suit No. IK/141/65 and obtained judgment against him for (N40.00) as general damages for trespass committed on their land and an order of injunction restraining the defendants their servants and/or agents from committing further acts of trespass on the said land.
13. The plaintiffs further state that the area of land in this dispute is part of the larger area covered in the above suit of 1965 and will at the trial lead evidence by producing relevant documents and calling witnesses to prove the contention,”

Statement of Defence:

1. The defendants are not in a position to deny or admit paragraphs 1,2,3,4,5,6,7, 8, 13, 15, 16 and 21 of the statement of claim and put the plaintiffs to the strictest proof thereof.
2. The defendants deny paragraphs 9,10,14,17,18,19 and 20 of the statement of claim and put the plaintiffs to the strictest proof thereof.
3. The defendants will contend that they derive their title from the late Chief Adeola Odunsi who was then trading under the name Royal Brothers and who has been in possession of the building shown on the plan attached to Suit. No. IK/141/65 as “Royal Brother” Produce Store” for upwards of 30 years. (italics added)
4. The defendants will contend that the plaintiffs are estopped from denying defendants ownership and possession having acknowledge (sic) same in plan No. AL.63/1962 of 20:8:62 filed in suit No. IK/141/65 and pleaded in paragraph 2 of the statement of claim.
5. The defendants will further contend that the judgment obtained in IK/141/64 does not cover the defendants land in that defendants were not made parties to the said proceedings even though the plaintiffs knew of the existence of the defendants as shown on the Plan No. AL.63/1962.
6. The defendants admit that they have not paid any rent to the plaintiffs as alleged in paragraph 11 of the statement of claim as none was due to the plaintiffs.”

The plaintiffs testified and tendered Exhibits “A” and “A1” – the purchase receipts, Exhibits “B” and “B1” – the certified true copies of the judgment in Suit No, IK/141/65 and survey plan No. AL63/1962 attached to the judgment, Exhibit “C” – the certified true copy of the Enrolment of Judgment in Suit No. IK/141/65 and Exhibits “D1” to “D4” – receipts for rents issued to “Royal Brothers Ltd” by the plaintiffs/respondents’ predecessors in title.

At the close of the plaintiffs’ case the defendants adduced no evidence at the trial in support of the averments contained in their joint statement of defence. They rested their case on the evidence adduced by the plaintiffs.

The learned counsel for the appellant contended that Exhibits “D1” to “D4” were never pleaded by either of the parties and were wrongfully admitted in evidence; that the appellant raised the issue in the court below and without determining whether the documents were properly admitted or not, the court below relied on them and came to the conclusion that the respondents are the owners of the land.

It was his further submission that the court below shut its eyes to the obvious legal implications surrounding Exhibits “D1” to “D4” and that this occasioned a miscarriage of justice. He said that in a situation such as this where both the trial court and the Court of Appeal admitted inadmissible evidence which affected the decision one way or the other, the proper order is one of retrial. The court was referred to the cases of Okpiri v. Jonah (1961) 1 SCNLR 174, Atolaghe v. Shorun (1985) 1 NWLR (Pt. 2) 360 Okonji v. Njokanma (1991)7 NWLR (Pt. 202) 131 and Dantubu v. Adene (1987) 4 NWLR (Pt. 65) 314. We were urged to set aside the judgment on this ground.

Mr. Ohwovoriole S.A.N. for the respondents argued in his brief that Exhibits “D” to “D4” were not pleaded by the plaintiffs because only material facts should be pleaded. He drew the attention of the court to paragraph 10 of the amended statement of claim where the plaintiffs pleaded the payment of annual rents by the father of the defendant/appellant, gave evidence to that effect and tendered Exhibits “D” to “D4”. He referred the court to the case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 261 and Order 16 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. He urged the court to dismiss the appeal.

The general principle is that every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence but not the evidence by which, those facts are to be proved. It should also be as concise as the nature of the case admits. See N.W. Salt Co. Ltd v. Electrolytic Alkali Co. Ltd. (1913) 3 K.B. 425 and Philips v. Philips (1875) 4 Q.B.O 133.

The plaintiffs in paragraphs 9 and 10 of their amended statement of claim averred that the land in dispute was let to the father of the appellant who died in 1975 as a customary tenant who never failed to pay his annual rents to the plaintiffs’ family; that this fact is within the knowledge of the appellant and “that receipts showing such payments by the late father of the appellant are hereby pleaded.”

The receipts (Exhibits “D” to “D4”) which are the subordinate facts are the means of proving or the evidence sustaining the payment of annual rents. They are not material facts which must be pleaded. The averments that annual rents were paid and that receipts were issued put the appellant on his guard and told him the case he was going to meet at the trial. The appellant cannot be heard to say that Exhibits “D” to “D4” established facts different from those pleaded or that they were not pleaded in view of the reasons given above.

Another line of attack on Exhibits “D” to “D4” is that they were issued to “Royal Brothers Ltd” and not to Chief Adeola Odunsi, the alleged customary tenant and that the former is a legal entity distinct from Chief Adeola Odunsi. If one goes back to paragraph 3 of the statement of defence, the appellant averred that he derived his title from the late Chief Adeola Odunsi who was trading under the name of “Royal Brothers” and who had been in possession of the building shown on the survey plan attached to Suit No. IK/141/65 as “Royal Brothers Produce Store.”

In the survey plan Exhibit “B1” attached to the judgment in Suit No. IK/141/65, the plaintiffs in that case who are also plaintiffs in the present proceedings showed a building which is within the larger area of land in litigation in that case as “Royal Brothers Produce Store.” paragraph 3 of the statement of defence also confirmed paragraph 16 of the amended statement of claim.

Exhibits “D” -“D4″were issued on the letter-heads of “Royal Brothers Ltd” and not to Chief Adeola Odunsi. Even if the respondents led no evidence to link Odunsi with “Royal Brothers Produce Store”, “Royal Brothers” or “Royal Brothers Ltd” , the fact remained that by paragraph 3 of the statement of defence, the appellant supplied the link between Odunsi and the “Royal Brothers” and the respondents pleaded and adduced evidence which the court believed that Odunsi was their tenant.

Having admitted that Odunsi who traded under the name “Royal Brothers” was her predecessor in title and was in possession of the building shown in the survey plan Exhibit “B1″as “Royal Brothers Produce Store”, the onus was on the appellant to show when the land and building on Exhibit “B1” ceased to be that of Odunsi who carried on business as “Royal Brothers” and became that of “Royal Brothers Ltd”. The appellant offered no evidence to discharge this onus. See Ajide v. Kelani supra at 263.

Assuming that Exhibits “D” – “D4” were wrongly admitted which was not the case, the respondents proved their title to the larger portion of land of which the parcel in dispute is part by absolute sale of the same to their father Amodu Gbamgbala by Agbeye family in 1915. The said Amodu Gbamgbala was put in effective possession thereof. From the time of the purchase until his death in 1937, he exercised absolute undisturbed and uninterrupted over the parcel of land. The respondents are his children who succeeded him under native law and custom and entered on the land exercising acts of ownership without disturbance from anyone. In addition, respondents proved the acts of the appellant which are inconsistent with their title as the over lords.

The court below did not expressly consider the admissibility of Exhibits “D” to “D4” by the learned trial Judge, this did not lead to any miscarriage of Justice. There was no violation of any principle of law or practice or such a departure from the rules which permeate all judicial procedure by the courts below. See Devi v. Roy (1946) A.C. 508 at 521.

The decisions arrived at by the courts below could not have been otherwise.

It would have been the same with or without Exhibits “D” -“D4″having regard to the state of the pleadings and the evidence led. The respondents had by other admissible evidence proved their claim. See Oguma v. I.B. W.A. (1988) 1 NWLR (Pt. 73) 658 at 682. It is not every error that will result in the judgment of a court below being disturbed. Such an error or slip must strike at the root of the decision appealed against.

The learned appellant’s counsel admitted in the course of his oral submission before us that the defendants of which the appellant is the 1st defendant adduced no evidence at the court of trial. Averments in pleadings unless where admitted by the opposite party must be established or proved by evidence, failing which, they must be discountenanced as unsubstantial. They cannot be construed as evidence. See Akinfosile v.ijose (1960) SCNLR 447; (1960) 5 F.S.C. 192. Anyah v. ANN. Ltd. (1992) 6 NWLR (Pt. 247) 319 at 331 and Obmiami Brick and Stone (Nig.) Ltd. V. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260 at 293.

In this case, the evidence of the respondents stood unchallenged by the appellant who had the opportunity to do so. The learned trial Judge after due consideration of the evidence before him which was that of the plaintiffs, the addresses of counsel and the authorities cited had no difficulty in coming to the conclusion that the respondents’ case was proved and he found for them as per their amended claim. See Nwahuoku v. Ottih (1961) 2 SCNLR 232 (1961) 1 All NLR 487 at 490. Balogun v. U.B.A. Ltd. (1992) 6 NWLR (Pt. 247) 336 at 354 and Omoreghe v. Lawani (1980) 3-4 S.C. 108 at 117.

The Court of Appeal in confirming the claim for a declaration of statutory right of occupancy came to the right conclusion when it said:

“The entire argument of the appellants as to the nature of the tenancy is beside the point in the face of the finding that their father was a tenant of the plaintiffs. The plaintiffs say he was a customary tenant, to the land and contend that their father was not a tenant, (sic) Having failed to prove their own title to the land, and their father found to be a tenant, then he must be a tenant according to customary law since this is the case of the plaintiffs which the defendants did not destroy.”

The courts below also came to the right conclusion when they held that the appellant was liable to forfeiture since she failed to fulfill her obligations under the customary tenancy, denied the landlord’s title and let out portions of the land granted to her late father to third parties without the land lord’s consent or approval.

Unless a customary tenant who has committed a breach of his customary tenancy claims relief from forfeiture and invokes the equitable jurisdiction of the court to grant the relief, the order of forfeiture and recovery of possession cannot be denied the customary landlord – the respondents in this case. The appellant has persisted and remained unrepentant in her conduct. The customary tenant can seek the relief from forfeiture by means of a counter-claim. Where she failed to do so, she cannot do so for the first time on appeal. See Onisiwo v.Fagbenro (1954) 21 NLR 3. Dokubo & or. v. Boh-Manuel & ors. (1967) All NLR (Reprint) 122 and Erinle v. Adelaja & 7 ors. (1969) 1 NMLR. 132 at 136. The court below was therefore in error to have refused the order of perpetual injunction granted by the learned trial Judge after affirming the order of forfeiture also made by the court of trial. The said order made by the learned trial Judge is hereby restored.

In conclusion, with or without Exhibits “D” – “D4”, the case of the respondents was proved. The appeal is unmeritorious and I hereby dismiss it with N1,000.00 cost to the respondents.

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Other Citation: SC.134/1991