Alakija V Abdulai (1998)
LAWGLOBAL HUB Lead Judgment Report
EMANUEL OBIOMA OGWUEGBU JSC
The appellants as plaintiffs and Executors/Executrix of the estate of Olajide Alakija Instituted the action leading to this appeal in the High Court of Lagos State against the defendant who is the respondent herein claiming as follows:-
“(a) A declaration that they are the owners of all that piece or parcel of land with the structures thereon situate and lying and being at lpaja, Orile-Agege, in Ikeja Division of Lagos State of Nigeria which parcel of land is vested in the plaintiffs’ late father, Mr. Olajide Alakija by virtue of a Deed of Conveyance dated 30th July, 1965 and registered as No. 11 at page 11 in Volume 871 of the Land Registry, Ibadan then Western State of Nigeria. In the alternative the plaintiffs claim a declaration that they are the people entitled to a Certificate of Occupancy in respect of the said piece or parcel of land mentioned in paragraph 1 above, pursuance (sic) to the provisions of Land Use Decree (1979),
(b) N20,000.00 being general damages for act of trespass committed on the said land by the defendant.
I An order of perpetual injunction restraining the defendant his privies, agents and/or servants from committing further acts of trespass on the said land.”
The case was heard on the pleadings filed and exchanged by the parties following an order of the court to that effect. At the close of hearing, Oshodi, J., in a reserved Judgment dismissed the plaintiffs’ claim in its entirety. The plaintiffs were aggrieved by the decision of the learned trial Judge and appealed to the Court of Appeal, Lagos Division. Their appeal to that Court was dismissed hence the further appeal to this court.
The facts of the case in a nutshell are that in 1962, Ewedairo Family sold the parcel of land in dispute to Barrister Olajide Alakija (deceased). The said transaction was evidenced by a Deed of Conveyance dated 30-7-65 and registered as No. 11 at page 11 in Volume 871 of the Land Registry, Ibadan which was then the appropriate Registry. The appellants’ late father put some tenants on the land. In January, 1979, the respondent together with his servants and agents commenced the erection of a fence on the land and this led to the action leading to this appeal. The respondent’s case is that he is the owner of the legal estate in his plot of land by virtue of a Deed registered as No. 99 at page 99 in Volume 1769 of the Lands Registry in the office at Lagos. That the said plot of land forms a portion of a large area of land which originally belonged to one Alhaji Abudu Gafari Olalabi Sulu by virtue of purchase at an auction sale conducted by one Mr. Abayomi in December, 1958 and the said Alhaji Abudu Gafari Olalabi Sulu was put into undisturbed Possession thereof and he exercised unfettered right of Possession as absolute owner. By a Power of Attorney dated 8-5-74 Alhaji Abudu Gafari Olalabi Sulu appointed Rafiu Abiola Olalabi Sulu as his lawful attorney in respect of all his lands including the large area of land of which the respondent’s land forms part. The said lawful attorney conveyed the respondent’s plot of land to him in 1977. The latter was put into Possession and he remained in undisturbed Possession until early in 1979 when unidentified persons started to lay claim to the said plot of land.
As stated earlier in this judgment, the plaintiffs who were dissatisfied with the decision of the Court of Appeal appealed to this court. Briefs of argument were filed by the Parties in compliance with the rules of this court and from the grounds of appeal filed, the appellants submitted the following issues for determination in the appeal.
“1. Whether the court below was not in error when it upheld the rejection of the evidence of P.W.2 by the learned trial Judge when there was no basis in law for the total rejection of such evidence.
- Whether the learned Justice of Appeal who wrote the lead judgment, concurred by a second Justice, was not in error when he held that the learned trial Judge was right to have compared the evidence of P.W.2 in the present suit with the evidence of the witness in an earlier suit with a view to assessing the witness’s credibility.
- Whether the court below was not in error when it upheld the trial Court that the judgment in Suit No. HK/68/60, Exhibit E, operated as ithhold so as to bar the present proceedings.
- Whether the court below was right when it held that the judgment of the Court in Suit No. HK/68/60, Exhibit E, does not fall within the type of judgment envisaged in the decision of the Supreme Court in J. B. Daniel & Ors. V. Paul- Cardoso, SC/144/74, and that the judgment puts the respondent on a better footing than the appellants with regard to the ownership of the land in dispute and that it conclusively decided the issue of ownership and possession of the land.
- Whether the court below was not in error in not holding that the whole trial was vitiated by procedural irregularity.”
The respondent did not agree with the total formulation of ISSUES by the appellants either because the issues constitute unnecessary fragmentation of what in effect are single issues or, because some of the issues raised and argued are not open to the appellant. However, the defendant/respondent identified the following three issues as arising for determination:
Whether a court can properly compare the evidence given by a witness before him with that given by him in another suit with a view to using such other evidence in assessing the credibility of the witness.
Whether the judgment in Suit NO. HK/68/60 Exhibit E operated as ithhold so as to bar the plaintiffs’ action.’
Whether in the circumstances of this case it was not too late to raise the issue of the irregularity arising from the delay in concluding the evidence of P.W.2.”
Mr. Molajo who argued the appeal adopted and relied on the appellants’ brief of argument filed by Kehinde Sofola, Esq. S.A.N., on 17-5-94. He also made oral submissions in expatiation of the arguments contained in the brief. He submitted in respect of the first issue for determination that the learned trial Judge rejected the evidence of P.W.2 because it is completely at variance with the Pleadings of the appellants, and also, that it was similar to his (witness’s) evidence referred to in Exhibit “E” which was rejected in that exhibit. It was further submitted that the learned trial Judge was of the view that the evidence of P.W.2 was completely at variance with the pleadings of the appellants without demonstrating how and in what respect it was so and that he failed to evaluate the evidence of P.W.2 as given before him as regards the traditional history of the land but merely rejected the traditional evidence because it was rejected in the earlier suit. We were urged to hold that the learned trial Judge was in error and that the court below was similarly in error not to have re-evaluated the evidence of P.W.2 in the exercise of its powers of re-hearing the appeal before it. The case of Onwuchuruba v. Onwuchuruba (1993) 5 NWLR (Pt. 292) 185 at 199-200 was cited and relied upon.
SC.42/1994
