Alhaji Raji Oduola & Ors V. Mrs. B. Ashcroft & Anor (1978)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal in appeal No. CAW/97/72 judgment having been delivered on the 15th of November 1974. The case came before the Western State Court of Appeal on appeal against the judgment of the High Court of Ibadan (Abina, J.) For the purpose of this appeal, we shall restrict ourselves to the grounds canvassed before us but in doing so, we wish to refer to relevant portions of the judgment of the High Court and the Western State Court of Appeal, the High Court judgment inter alia reads:-

“In this case the plaintiffs’ claim against the defendants jointly and severally are for:

‘1. Declaration of title under Native Law and Custom to all that piece or parcel of land situate lying at Lebanon Street and Onireke Street Gbagi, Ibadan.

2. Possession of the said piece and parcel of land.

It is very important in view of paragraph 4 of the Statement of Defence in Suit 1/120/49 which the learned Chief Justice (as he then was) accepted; and also because the case of the 1st defendant throughout was that the grant to her predecessors-in-title was absolute. On sober reflection on the evidence as a whole the plaintiffs have not adduced justifiable evidence to entitle them to the declaration sought, the action must fail.

I wish to express the views that conditions in Ibadan are the same as conditions in Lagos. Applying this principle to this case I consider that since 1st defendant’s family has been in undisturbed possession of the land for over 63 years and probably 69 years that even her predecessors-in-title got it in 1907, it will be inequitable to dispossess the defendants’ family. In consequence I dismiss the plaintiffs’ claims against the defendants in entirety. Since I cannot grant declaration of title to the plaintiffs under native law and custom I am not entitled to grant them possession of the land in dispute because they were never in possession of the land at any time. on the contrary the predecessors-in-title of the 1st defendant’s family and the 1st defendant and their tenants and finally the 2nd defendant who has obtained a lease from the 1st defendant in 1946 have always been in possession. Having held that the plaintiffs were neither in actual possession or even a right to possession, according to the evidence in this case I find myself unable to say that the 2nd defendant is a trespasser because possession is an essential ingredient in the claim of trespass and I therefore dismiss the claim for trespass.

The claims of the plaintiffs are dismissed in their entirety.”

On appeal to the Western State Court of Appeal, the relevant judgment of that court reads inter alia:-

“Mr. Chukura has asked us to hold that any equitable rights that the 2nd defendant might have acquired have been defeated by fraud. We mean no disrespect when we say that we find no difficulty in rejecting this submission because no case of fraud was raised in the pleadings, no evidence of fraud was adduced at the trial and counsel did not canvass a case of fraud whilst addressing the court of trial. One of the complaints of learned counsel for the appellants, Mr. Chukura, was that the court was not entitled to speculate on the contents of the lease between the 1st and 2nd defendants. This complaint appears to us to be misconceived as the court never speculated on the contents of the lease. We have noted that mention of the lease was first made by the plaintiffs themselves in paragraph 20 of the Statement of Claim where they averred:

‘The plaintiffs have discovered that the 1st defendant demised the land in dispute to the 2nd defendant as evidenced by a deed of lease dated the 8th day of May, 1947 and registered as No. 4 at page 4 in volume 769 of the Lands Registry at Lagos now kept in the Lands Registry at Ibadan.’

Mr. Chukura advanced his arguments further by seeking to rely on the case of Isiba v. Hanson (1967) 1 All NLR. 8 where the landlords sued the customary tenants for forfeiture of customary tenancy, injunction and possession; and it was held that “Possession is of the essence of a customary tenure; so the mere evidence of possession without any other overt acts equivocally pointing to the assertion of absolute ownership to the knowledge of the plaintiffs was not sufficient to divest the plaintiffs of their radical ownership of the property.

Isiba’s case can be of no assistance to us as no question of customary tenancy did arise in the instant case. The defendants were not customary tenants of Ibikunle family. The crux of their defence was long adverse possession. In the result, the 5th ground of appeal must also fail. In support of the 6th ground of appeal, Mr. Chukura’s contention was that the learned trial Judge contradicted himself at pages 62 and 84. At page 84 lines 31 to 36, the learned trial Judge held that the area marked ‘A’ was, in effect, the property of Balogun Ibikunle by settlement and that his interest was subject to the overriding rights of the community usually exercised by the Bale and his executives. In our view, that finding in no way conflicts with page 62 where the court in considering whether the Ibadan City Council was in possession of the land in dispute, made the following observation:

‘It is worthwhile to say that Olubadan and Council even in Suit 1/120/49 never laid claim to the possession of the land in dispute”

We fail to see any contradiction in the passages referred to by counsel at pages 84 and 62. We shall now consider the 7th ground of appeal where it was contended that as no acquisition was proved and as the purpose for which the purported acquisition was made has totally failed, the land in dispute has reverted to Ibikunle family. The case of Ukwa & Ors. v. Awka Local Council & Ors. (1965) 1 All NLR 349 was relied upon by counsel. In Ukwa’s case, a parcel of land called Eke Odenigbo was granted by the plaintiffs to the people of Awka for a central market. It turned out that the site was not popular with some sections of Awka, and the market was moved to another side. Later, the Awka Local Council started to administer Eke Odenigbo by making grants of portion of it and collecting rents from the grantees. Thereupon, the plaintiffs sued the Council for declaration of title, recovery of possession, damages for trespass and injunction. The court of trial held that the plaintiffs were estopped by their conduct from asserting their right; but a contrary view was taken by the Supreme Court on appeal. The relevant portion of the judgment of the Supreme Court is at page 355 and it reads as follows:-

‘With all respect to the learned trial Judge we do not agree that in the case under consideration the appellants were estopped by their conduct from asserting their title. The doctrine of laches is that a person entitled to land should not stand by and allow another person who thinks the land is his to make improvements, and then assert his right to the land; he wants to take the improvements and cheat the other man of the expense he is making. In this case, there is no evidence that the council spent any money before the appellants’ eyes.’

The appeal was allowed.

In our view, Ukwa’s case is distinguishable from the instant case on the ground that in Ukwa’s case, the court was unable to apply the doctrine of laches because, as stated at page 355, there is no evidence that the council spent any money before the appellants’ eyes. The contrary is the case here where it was proved that the defendants spent over 70,000. We are therefore unable to uphold the submission of Mr. Chukura with regard to the 7th ground of appeal.

It is convenient to consider grounds 8,9,10 and 11 together. The points raised here were that as the Ibadan City Council and the Ibikunle family had not allocated the land in dispute, the radical title remained in the family; that the lower court took a mistaken view as to onus of proof in saying that the plaintiffs and the council did not adduce evidence that Babalola or his predecessors-in-title paid rent. Though compelling arguments have been advanced in respect of these grounds of appeal, we are satisfied that the equitable defences raised by the defendants and, rightly in our view, accepted by the lower court, provide a complete answer to the points raised. These equitable defences are the pivot on which the judgment turns and we are of the view that they remain unshaken by the complaints in these grounds of appeal.

In the result, this appeal must be dismissed as all the grounds of appeal have failed. The appeal is hereby dismissed with one hundred and ten Naira (N110) costs to each respondent”. On appeal to this court, the appellants filed six grounds of appeal:-

1. The Court of Appeal erred in law in not entering judgment for the appellants when it was clear from the pleadings and evidence on record that the respondents founded their case upon a grant by the Bale and council, but failed to prove that or any other grant.
2. The respondents being trespassers on the land in dispute, are not entitled to rely on the equitable defences of long adverse possession, stale claim, laches and acquiescence, and the Court of Appeal erred in law in holding that these defences were sustained in the circumstances.
3. The Court of Appeal erred in law in holding that the equitable defences raised by the respondents were maintainable against the appellants when:

(a) the appellants were not aware of their rights until 1968 or thereabouts

(b) their conduct in the whole transaction was unexceptionable

(c) it was not certain until 1968 or thereabouts that the respondents were trespassers

(d) The Bale in Council (and their successors-in-office and title) from whom the respondents claimed were in a position analogous to that of trustees for the appellants.

(e) appellants promptly sued out their writ upon discovering that the respondents raised adverse claims to their land in dispute.

(f) Second respondents who knew (or should know) of the pendency of suit 1/120/49 (judgment delivered on 2nd April 1958) took a lease of the land in dispute from the first respondent and built its shop.

(g) The court of first instance held that the land in dispute has remained in possession of the appellants to date.

4. The Court of Appeal misdirected itself on the facts when it held as follows:-

(i) “Although we are of the opinion that Mr. Chukura was right in submitting that the learned trial Judge erred in describing Taylor as a native of Ibadan in the absence of evidence to that effect, yet we are satisfied that this has not resulted in miscarriage of justice as the issue before the court were

1. Whether Taylor sold her premises to H.A. Babalola in 1932 as evidenced by the purchase receipt Exhibit K; and 2. whether Babalola and his successors-in -title have since been in undisturbed possession thereof. In deciding these issues, we fail to see any need to consider whether Taylor was a native of Ibadan or not.”

(a) The issue was whether Taylor received an absolute grant of the land in dispute from the Bale and Council and not merely whether he sold to Babalola.

(b) There was therefore miscarriage of justice arising from the respondents’ failure to prove the material averments in their pleadings.

(iii) The 1st D.W. Alhaji Mustafa Alli was born in 1882. He gave evidence that Balogun Ibikunle died in 1862 during the Ijaye war. The criticism of Mr. Chukura that the evidence of 1st D.W. did not relate to tradition is therefore not well founded.”

(a) The evidence of Mustafa Alli which the court of first instance believed was not traditional evidence but evidence as to what Alli saw and knew.

(b) The parties were agreed on the fact that Balogun Ibikunle died before the facts giving rise to this action.

(c) Mustafa Alli’s evidence on the death of Balogun Ibikunle was contradictory and could not have been believed by any tribunal.

(d) The view held by the learned trial Judge disabled him from considering the appellants’ case adequately and led to a miscarriage of justice.

5. The Court of Appeal erred in law in its consideration of Ground 3 argued before the court, in that it endorsed the erroneous approach of the trial Judge who treated the judgment in 1/120/49, (Exhibit B) tendered in court, as evidence upon which he could (and did) proceed to make his own deductions.
6. The Court of Appeal erred in law in upholding the error of law made by the court of first instance in casting upon the appellants the onus of calling the Bale in Council (or their successors) to prove the averments of the respondents (this error was raised in ground 9 of the grounds of appeal)

Chief Olisa Chukura, SAN., who argued the appeal for the plaintiffs/appellants started with grounds 2 and 3. After making his points on those two grounds, Chief Chukura told us that he was not pursuing the other grounds of appeal and we made the following endorsement of the record:-

“Chief Chukura says that the other grounds of appeal have been argued on ground 3 and did not propose to urge further argument.”

We have already quoted grounds 3 and 4 earlier and the main point put forward by Chief Chukura is that the defence of laches and acquiescence cannot apply to the case, thus, debarring the plaintiffs’ claim of declaration of title and possession. It was common ground that a large area of Ibadan of which the piece of land, the subject matter of the case is part, was originally settled by Balogun Ibikunle, who came from Ogbomosho. He died in 1882 and by native law and custom, the land would devolve on inheritance on his descendants. It was also common ground that as far back as 1900, or as the plaintiffs admitted, there had been a building on the land since 1915 by the predecessor-in-title of 1st defendant/respondent. It was also common ground that no rent was paid to either the ICC or the plaintiffs by the 1st defendant. It was conceded that the land had been in possession of the 1st defendant for either 69 years or 54 years and that the possession was never disturbed. It was conceded further that 2nd defendant/respondent built a large building costing 70,000 pounds on this land, which extended to an adjoining land. Chief Chukura’s argument was that the possession of 1st defendant/respondent was disturbed during the reign of Bale Abasi (1930-46) during which the plaintiffs/appellants negotiated with the Bale and Council for payment of rent or compensation. No evidence was given, and, counsel did not urge on us that the 1st and 2nd defendants/respondents ever had knowledge of the negotiations. For the purpose of his argument, counsel cited several authorities and we think the one on which he placed great reliance is: The Master or Keeper, Fellows & Scholars of Clare Hall v. Harding (1848) ER 67 1169at 1176. The portion of the judgment material to this case reads:-

“I have before stated that a correspondence had taken place between the solicitors of the contending parties on the subject of Henry Harding’s title. The plaintiffs, referring to that correspondence, say (and upon demurrer I must take it to be true) that the defendant, Henry Harding, by the said letters of his solicitors, claiming the entirety of the premises, wilfully and designedly misled the plaintiffs and their solicitors as to and respecting the said title, and thereby the plaintiffs were induced to enter into the agreement aforesaid to indemnify Rowntree in respect of the same, which the plaintiffs would not otherwise have done. The consideration of this passage I shall consider hereafter.

The third point gives rise to several questions, one of which must, I think, be clearly answered in the defendant’s favour. If a party in the possession of an estate, knowing that another claims the property, will with his eyes open, spend money upon it, I know of no case in which it has been held that he can, in the absence of special circumstances, keep the lawful owner out of possession unless he will reimburse the party in possession the expenditure he has made. That would indeed be improving a man out of his own estate; and I think the same reasoning must apply where one party claims to be tenant in common with another, and that other denies the tenancy and claims the entirety of the property. I cannot distinguish the two cases. I speak, of course of those cases in which the claim of the party out of possession has been distinctly made.

It was said, indeed, that Henry Harding, seeing the expenditure going on, ought in fairness to have reasserted his claim, but that as a question of law I cannot accede to. Where a party has once given distinct notice of his claim, the onus is on the other side to shew he has abandoned, or given reason to believe he has abandoned his claim. The bill does not make that case, nor does the bill, I think, suggest that Henry Harding knew of the terms of the agreement of the 22nd August 1846. If that be so, it will strengthen the defendant’s case, but I do not think it is necessary to it.

With respect to the defendant’s alleged delay in bringing the ejectment, it was not such as to affect the case. The bill does not suggest that any fraudulent purpose with reference to the expenditure of Stickney and Rowntree operated on Henry Harding’s mind as a ground for not accelerating the trial. That being so, I cannot in the absence of such a suggestion infer a fraudulent motive merely from the fact of Henry Harding passing by the Spring Assizes of 1847

The plaintiffs therefore, in my opinion, have no equity, unless an equity is to be found in the passage of the bill which I have quoted above. In that passage it will be remembered that the bill refers to the claim made in the letters. That passage requires very close examination in order to fix its real meaning. If Henry Harding do not recover anything, the plaintiffs, of course, will have the full benefit of the expenditure – they will keep the property.

The case therefore to which the passage in question must apply is the case of Henry Harding recovering the whole or part of the property… The question then is on the effect of the passage (so understood) in giving the plaintiffs an equity in respect of the expenditure on the property in consequence of Henry Harding claiming the moiety by a title under the wills I have mentioned. I clearly understand that to be the meaning of the passage; and it must be the meaning. The first observation which occurs is as to the animus with which Henry Harding made the claim. It cannot possibly have had reference to the expenditure, in respect of which the equity is claimed; for Henry Harding’s claim to the entirety was finally made on the 18th of August 1846, and the expenditure was not contracted for until after that. This observation further confines or imposes a further limit on the meaning of the passage in question, and reduces it to this that Henry Harding made his claim to the entirety for the purpose of wilfully and designedly misleading the plaintiffs as to the grounds of his claim to the moiety; that is, for the purpose of concealing his title from them, for if the claim has no reference to the expenditure, I can find no other meaning for the passage but the one which I have mentioned.

Now excluding for a moment the animus with which the claim is said to have been made, could it be seriously argued that a claim exceeding in extent what the claimant knows he is entitled to would justify the party against whom it is made in treating that claim as a nullity, and justify him in expending money in improvements on property, which property he knows to be claimed by another Would it justify him so as to make that other his debtor to the amount expended in case the claim should prove well founded This must be answered in the negative; and in this case, a fortiori, it must be so answered, for the only representation made – that which related to Mark Anthony Stephenson’s seisin at his death – is in accordance with Henry Harding’s title. The equity must therefore depend on the animus, and the effect it is said to have produced on the plaintiffs. There are limits beyond which merely general expressions must not be carried even on demurrer. What is the device by means of which Henry Harding wilfully and designedly misled the plaintiffs He claimed the entirety of an estate, to one-half of which only, on the statement contained in the bill, he knew he was entitled.

How could that mislead the plaintiffs as to Henry Harding’s right to part of what he claimed They say he knew nothing of the wills of Mary Stephenson and Mary Bowes, nor of the ground of Henry Harding’s claim; and that they supposed Mark Anthony Stephenson was entitled as heir of his father; and that they, the plaintiffs, were entitled under his will. Henry Harding’s claim under those circumstances could no more mislead them than would the claim to a moiety, the title to which was unexplained. Still the plaintiffs say they were misled, that Henry Harding intended to mislead them; and the statement in the bill is that, in consequence, they treated his claim as a nullity, and expended their money as if no such claim existed. Now, must I not, before I decree Henry Harding to pay for his own estate, inquire whether the circumstances which the plaintiffs say misled them are such as could mislead anybody not wilfully blind It must always be remembered that Henry Harding made no misrepresentation. He says nothing, even by implication, which was untrue or inconsistent with his admitted title. My opinion is that the plaintiffs were not justified in treating the claim in a case where they knew nothing of the title as a nullity, so as to entitle them to recover back the expenditure. Having come to the conclusion I have stated, that the plaintiffs have no equity, unless it could be found in the charges I have mentioned, and being satisfied that the charges will not give it, I am of opinion that this demurrer must be allowed.”

(Underlining supplied by the court.)

We have considered the submissions and arguments of learned counsel for the appellants and are satisfied that the case Clare Hall v. Harding (Supra) does not, on the facts in the case in hand avail the appellants; we, therefore, see no reason for us to disturb the judgment of the Western State Court of Appeal. Before proceeding further, we wish to refer to the judgment of this court in S.C. 387/75 delivered on Friday, 21st April 1978 which related to the adjoining land to the one now in dispute before us and the parties are as follows:-

Alhaji Raji Oduola

Bello Lahan

Chief Bellow Akinrin

(For themselves and on behalf of the Ibikunle family) as plaintiffs/appellants

AND

Ibadan City Council

A.G. Leventis & Co. (Nig.) Ltd.,

as defendants/ respondents.

This court then held as follows:-

“We recall that the trial Judge in the 1949 case found that since the plaintiffs/appellants had granted the land then in dispute (which includes the land now in dispute) to the 1st defendant/respondent, it would be difficult to grant them declaration of title to that land because they (the plaintiffs/appellants) could not have what they had given away. The trial Judge also observed in his judgment in that case that all the plaintiffs/appellants would have been entitled to was a declaration as to their reversionary rights in the said land. The plaintiffs/appellants did nothing for eleven years to assert these rights. We also recall the undisputed testimony of Ladele (1st D/W) that the land now in dispute, which he referred to as Block 1(2), is sandwiched between two other parcels of land (referred to by him as Block 1(1) and Block 1(3)) which are owned by the 1st defendant/respondent in the landlord to the C.F.A.O. in respect of another parcel of land nearby. Bearing in mind that there was no appeal against the judgment in the 1949 case, and having regard to the facts which we have highlighted above, the decision of the learned trial Judge in the present case that the defence of laches succeeded was inevitable.

For the above reasons, we are unable to see any merit in the ground of appeal argued before us. The appeal, therefore, fails and it is dismissed. The judgment of the Ibadan High Court dismissing the plaintiffs’ claim as well as the decision of the Western State Court of Appeal dismissing the appeal against that judgment are affirmed.”

This court in the same judgment dealt with the issue of laches and referred to several authorities. We repeat and confirm the reasons in support of, and conclusions on, the issue of laches and acquiescence given in the case cited above (SC. 387/75).

The appeal therefore fails. The judgment and the award of costs by the Western State Court of Appeal in CAW/77/74 are hereby affirmed. The appeal in this case is hereby dismissed with costs assessed at N430.00 to be paid by the appellants to the respondents.

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Other Citation: (1978) LCN/2103(SC)