James Fakorede & Ors V. Attorney-general Western State (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal dismissing an appeal against the judgment of the High Court, Ibadan, (Ayoola, J.) and affirming the said judgment.

The appeal arose out of Suit No. I/110/65 in the High Court, wherein the claim of the plaintiffs, herein appellants, against the defendant, now respondent, was for a declaration that the plaintiffs are not bound by the terms of the Deed of Lease, the particulars of the registration whereof would be set out hereafter, and that the plaintiffs are entitled to determine the tenancy of the Government of Western Nigeria by six months’ notice given in that behalf.

The facts of the case as found by the learned trial Judge have been fully and clearly summarised by the Western State Court of Appeal in its judgment. Normally, it would not have been necessary for us to travel through the whole length again, but in view, however, of the issues canvassed before us and the fact that the decisions of the High Court and of the Western State Court of Appeal turned on the evidence and on the pleadings iled in a previous case – Suit No. I/136/57, we consider it unavoidable to examine in some detail the history of the litigation over the land concerned in the appeal. Indeed Suit No. I/136/57 like the present one on appeal appeared to have been decided on the pleadings.

The dispute over the land, the subject matter of this appeal, dates back to 1957 when by a petition of right the plaintiffs claimed the sum of 42,000 pounds as compensation due to them in respect of about 842.962 acres of land alleged by them to be their property and as forming part of a larger piece or parcel of land, the subject matter of acquisition by the Government of Nigeria. By the fiat of the Attorney-General of the then Western Region, the petition was referred to, and subsequently became Suit No. I/136/57 in the High Court, Ibadan.

During the pendency of that suit, by an order of the court, on the application of the plaintiffs, both the Olubadan of Ibadan and the Ibadan District Council were on 21st August, joined as 2nd and 3rd defendants respectively, the Attorney-General remaining therein as the 1st defendant. Thereupon the parties in the suit were:

“1. James Fakorede)

2. S. A. Bakare)
3. Ashiru Oriola) Petitioners

(For themselves and on behalf)

of other claimants)

And

1. The Attorney-General,)

Western State ) Respondents

2. The Olubadan of Ibadan)
3. The Ibadan District Council)

Thereafter pleadings were ordered, duly filed and delivered but only exchanged between the plaintiffs and the 1st defendant. Indeed, after delivery of the Statement of Defence by the 1st defendant, the plaintiffs filed and delivered on two occasions what was described and headed as “Further Pleadings”. This aspect of the matter is very important as the subsequent “Further Pleadings”, as would be seen shortly departed fundamentally and materially from the original claim of the plaintiffs as set out in their original Statement of Claim.

For the purpose of this appeal, it should be noted that in their original Statement of Claim dated 3rd May, 1958, the plaintiffs had averred, among other things, that the action was instituted by them in a representative capacity, that is to say, for themselves and on behalf of all other joint owners consisting of fifteen individuals, the names whereof were set out in the Statement of Claim, of a tract of land known as “Old Government Acquisition No. B, Moor Plantation, Ibadan”, measuring and containing some 842.962 acres which was then being used by Government as Agricultural Experimental Station and whereon were erected offices and residences for students and officers; that from time immemorial their ancestors were the acknowledged owners and in actual phyical possession in accordance with Yoruba native law and custom of all the said land known as Government Acquisition B, Ibadan; that they were all born on the land and had been in peaceful and undisturbed possession of the same until they were forcibly ejected therefrom between the years 1903 and 1904 and their hamlets and villages burnt to ashes by Government; that neither their ancestors nor they were informed of their right to compensation in respect of the said land and none was in fact paid to them; that their persistent demand for compensation proved of no avail except to elicit the information that unknown to them, the land aforesaid had been acquired by Government for which purpose a formal notice dated 8th August, 1931 was published in Gazette No. 60 of 5th November, 1931. The plaintiffs then claimed the sum of 42,000 pounds as compensation to which they said they were entitled at the rate of 50 pounds per acre in respect of 842,962 acres of the land alleged by them to be their property acquired by Government.

The 1st defendant, in his Statement of Defence dated 4th July, 1958, after traversing certain parts of the averments contained in the plaintiffs’ Statement of Claim, in effect admitted that the land known as “Acquisition B” contained approximately 849.962 acres; that the same was acquired from and granted to Government for the use of the Crown by one Okunola, the Bale of Ibadan, Aminu Ayodabo and Akanmu the Council of Ibadan, who did so on behalf of themselves, their heirs and successors and that the Chief and people of Ibadan as lessors to the Government of Nigeria for a term of 99 years as from 1st January, 1934 at an annual rent of one shilling, if demanded, for which purpose a Government Notice dated 8th August, 1931, was published in Gazette No. 60 of 5th November, 1931. The 1st defendant then averred that title of the Crown to the land in question was based on a Deed of Lease dated 1st November, 1934 and registered as No. 20 at page 20 in Volume 318 in the Lands Registry at Ibadan, the said deed of lease having been subsequently confirmed and reinforced by a Certificate of Title and dated 28th June, 1957 and filed as No. 77 at page 77 in Volume III of the Lands Registry at Ibadan that prior to the acquisition and the grant of the Certificate of Title the land, Acquisition B, formed part of a vast area of land containing some 5000 acres demised to Government for 99 years as from 27th January, 1912 under several leases; that since then, the Government had been in peaceful and undisturbed possession of the whole area of land without the payment of annual rent to anyone and without in any way acknowledging the plaintiffs as having any title, interest or right in and over the said land; that it was only in 1930 that the Government decided to replace those several leases and to acquire the land, the subject matter in dispute, and did so.

The 1st defendant then pleaded that the plaintiff’s action be dismissed because –

(i) it was misconceived, it having been filed in breach of Order IV Rule 3 of the then Supreme Court Rules;

(ii) the plaintiffs were not entitled to any compensation;

(iii) by virtue of the provisions of Section 22 of the Public Lands Acquisition Ordinance (Cap. 185) Laws of Nigeria, the 1st defendant was not liable to the plaintiffs;

(iv) the action was statute barred by virtue of Real Property Limitations Act, 1874; and

(v) the compensation claimed was inflated.

Thereafter, the plaintiffs filed two more Statements of Claim headed “Further Pleadings” as already mentioned. From the point of view of the appeal under consideration, perhaps the more important of the two “further Pleadings” is the one dated 23rd January, 1961 because, having been filed specifically in obedience to an order of court made on 18th January, 1961, as a reply to paragraphs 8 and 9 of the 1st defendant’s Statement of Defence and should have been so headed, we consider it of vital and material relevance to the issues canvassed before us in this appeal.

The reply is short and consists only of three paragraphs. For the better appreciation of the point at issue, we reproduce in full hereunder both paragraphs 8 and 9 of the Statement of Defence and the “Further Pleadings” which were filed and delivered in reply thereto.

Paragraphs 8 and 9 of the Statement of Defence read as follows:-

“8. The defendant avers that the land under Acquisition “B” was acquired by Government for Crown use under a Government Notice dated 8th day of August, 1931 and published in the Nigerian Gazette No. 60 of 5th November, 1931.

9. The land has an area of approximately 849.962 acres and was acquired for a term of 999 years from 1st January, 1934.”

To the averments contained in the above paragraphs of the Statement of Defence, the plaintiffs filed a reply headed “Further Pleadings” in the following terms:-

“Further Pleadings

1. With regards to paragraph 9 of the Statement of Defence the Petitioners are now in position to admit that the Crown has acquired a 99 year lease of the area claimed on the 8th day of August, 1931.
2. The Petitioners further state that the 1/- (one shilling) per annum per acre reserved on the lease (if demanded) had not been paid to them by the Respondent as the persons entitled, although demanded by them.
3. The Petitioners also state that they made several demands on both the 2nd and 3rd defendants who also confirmed that no rents have been received by them from the Respondent WHEREOF the Petitioners claim

(a) That rents reserved on the area claimed be paid to them by the Respondent from the 8th day of August, 1931 up to and including the date of judgment.

(b) Other relief this Honourable Court may deem fit to give.

Dated at Ibadan this 23rd day of January, 1961.”

The notes made by the court on 18th January, 1961 when Ordering the plaintiffs to file the above Reply read thus:-

“By Court: In view of the allegations contained in paragraphs 8 and 9 of the Defendants’ Statement of Defence, I order the plaintiff to file a reply to these paragraphs within 14 days.

(Sgd.) QUASHIE – IDUN, C.J.”

From the pleadings exchanged between the plaintiffs and the 1st defendant in Suit No. I/136/57 and in particular from the Reply set out above to paragraphs 8 and 9 of the Statement of Defence, we think certain matters deserve special notice. These are:-

(i) There was no dispute as to the identity of the area of land, the subject matter of the action. It was a piece of land alleged by the plaintiffs and by the 1st defendant to contain about 842, 962 acres and approximately 849.962 acres respectively. That was the land the subject matter of Acquisition B for a term of 999 years as from 1st January, 1934 which was covered by a Certificate of Title granted on 28th June, 1937 and filed as No. 77 at page 77 in Volume III in the Registry of Land at Ibadan;

(ii) The plaintiffs by their reply abandoned the original basis of their claim. This was a fundamental and material change by the plaintiffs in their claim. They were no longer claiming the sum of 42,000 pounds as compensation in respect of a disputed piece of land. They acknowledged and virtually by their conduct and admission adopted the grant made to the Government in terms of the leases of 99 years at an annual rental of one shilling, if demanded, as from 8th August, 1931 as having been made in good faith by the grantors or lessors and with the requisite authority.

(iii) The plaintiffs were content merely to claim the rent reserved under the lease aforesaid as from 8th August, 1931 up to and including the date of judgment; and this was later found to amount to the handsome sum of 29/-

(iv) The right, title and interest of the Government to be and remain in possession in and over the said land was no longer in question. It was no longer a live issue by reason of the admission by the plaintiffs already mentioned.

(v) The admission was made at a time when the 2nd and 3rd defendants had filed no defences to the action. The 2nd and 3rd defendants had not even disclosed what, if any, defence they had to the action.

(vi) The 1st defendant relied on Section 22 of the Public Lands Acquisition Ordinance as completely discharging him from any responsibility of seeing to or being answerable for the application of whatever compensation was payable or might be paid.

This extraordinary change of front on the part of the plaintiffs in regard to their claim to compensation had a tremendous effect on the whole of the proceedings and, indeed, on the whole conduct of the case subsequently, because it was a complete departure or what might be described as volte face from their original claim. The claim to compensation was abandoned. Further, it established that the Government was right to have dealt with the grantors namely, O. Bale, A. Balogun, A. Otun Balogun, O. Otun Bale, Okunola the Bale, Aminu Ayoola and Akanmu the Council of Ibadan, who executed the deed of lease for 999 years from 8th August, 1931, such grantors having done so for and on behalf of themselves, their heirs and successors and the chiefs and people of Ibadan. Not unnaturally therefore, the 1st defendant changed his attitude. He took the view that since the authority of those who executed the 999 years lease in favour of the Government and the rent of one shilling per annum reserved thereunder have not been questioned, and since the payment to whom the rent might become payable discharges him from any obligation to see to its proper application, then its duty was clear and that was to continue to honour its obligation to those who had executed the deed of lease for 99 years. Onus was surely on the plaintiffs to show that the Government had dealt with the wrong persons who had no interest in the land acquired or they were not the competent authority to convey land concerned to Government. This, the plaintiffs never attempted to do.

When therefore the case came up for hearing on 22nd May 1963, the learned counsel for Government indicated the stand of the Government in no uncertain terms. He said:

“The 1st Respondent (that is, defendant herein) has agreed to pay the accrued rent, i.e.1 pounds.9/ (since 1934) to the Olubadan in Council, (The successors to the Bale and Council who leased the land to the Nigerian Government.) In accordance with the terms of the lease dated 1/11/34 and registered as No. 20 at page 20 in Volume 318 of the Lands Registry, Lagos, now kept at Ibadan.”

Mr. Adegunwa, counsel for the plaintiffs is recorded as having agreed to the statement by counsel for the 1st defendant. The record reads simpliciter: “Adegunwa agrees.” It was only Mr. Thanni, of counsel for the 2nd and 3rd defendants who said that while agreeing with the statement, he would insist that the 2nd respondent should keep the money when paid as the land belonged to the Bale and Council and not to the claimants (that is, to the plaintiffs).

Thus for the first time there was no indication of any dispute as to the ownership of the land between the plaintiffs and the 2nd and 3rd defendants. As the right of the Government was no longer disputed, the court dismissed the 1st defendant from the suit and thereupon adjourned the matter to 19/6/63 for the 2nd and 3rd defendants, as is recorded in the proceedings, “to clarify their positions in the case”, after noting that the 2nd defendant had been duly served with the Statement of Claim and the reply to the Statement of Defence filed by the plaintiffs and that no defence was yet filed by the 2nd defendant.

On 14th June, 1963, the case came up again, This time, it was as a result of an application for judgment by the plaintiffs as against the 2nd and 3rd defendants in default of defence. Judgment was accordingly entered for the plaintiffs for the rent reserved under the lease despite the fact that the application was opposed by the 2nd and 3rd defendants therein.

In the course of his judgment granting the application, the learned trial Judge said in part:

“Even if the predecessors-in-title or office of the respondents (Olubadan of Ibadan and the Ibadan District Council, i.e. the 2nd and 3rd defendants) leased it (meaning the land concerned) to the Government, they will be deemed to have done so in trust for the owners (plaintiffs’ family) and this court will not allow them to keep the rents paid for the land.”

And further:

“There will therefore be judgment for the plaintiffs for the rent due on the land which is the subject matter of this petition since 1934 i.e.,1 pounds.9d as well as subsequent rents payable thereof. If the 1 pounds.9/ has been paid to the 2nd and 3rd respondents, it is hereby ordered that they should pay it over to the plaintiffs, and should desist from collecting further rents in respect of the land in question, the plaintiff shall have his costs against the 2nd and 3rd respondents which I assess at 80 guineas.”

Against this judgment, there was no appeal.

It is clear from the foregoing that the judgment which was entered in favour of the plaintiffs was only for the rent reserved under the lease. It is also noteworthy that neither the Deed of Lease of 1st November, 1934 nor any plan of the land nor indeed the Certificate of Title issued to Government as a result of the acquisition was produced before the learned trial Judge when judgment was entered for the plaintiffs. As already observed, that judgment was delivered on 14th June, 1963. Then on 24th May, 1965, the plaintiffs instituted the proceedings which have resulted in the appeal under consideration claiming the relief which, as endorsed on the amended writ of summons are as hereunder set forth:-

“1.The Plaintiffs’ claim against the defendant is for declaration –

(i) that the plaintiffs are not bound by the terms of Deed of Lease dated 1st November, 1934 and registered as No. 20 at page 20 in Volume 318 of the Lands Registry, Ibadan; and

(ii) that the plaintiffs are entitled to determine the tenancy of the Government of Western Nigeria in respect of the portion of the property covered by the said deed which they occupy by giving six months’ notice to the said Government.”

It must be observed that for the purpose of establishing their claim in the case on appeal, the plaintiffs relied once more mainly on their pleadings and documentary evidence including the proceedings and judgment in Suit No. I/136/57 which were put in by consent. No oral evidence was given in support of the averment contained in their Statement of Claim.

According to the amended pleadings filed and delivered, the basis of the claim to the declaration sought is that the Government of Western Nigeria is a tenant of the plaintiffs in respect of 842.962 acres of land known as “Ibadan Acquisition B” being one of the pieces or parcels of land the subject matter of the Deed of Lease dated 1st November, 1934 for 99 years at an annual rent of one shilling and registered as No. 20 at page 20 in Volume 318 of the Lands Registry at Lagos; that the Government of Western Nigeria paid the sum of 29/- being rent from 1935 to 1963 to the Ibadan City Council and thereafter requested the said Council to pay the rent aforesaid to the plaintiffs; that the plaintiffs were not parties to the Deed of Lease aforesaid and are therefore not bound by the terms thereof; and that by reason of the judgment of the High Court in Suit No. I/136/57 the Government of Western Nigeria are estopped per rem judicatam as well as by conduct from denying the title of the plaintiffs to the land in question and their tenancy thereof.

The plea of the defendant is that the land, the subject matter of the action, having been acquired pursuant to the Public Lands Acquisition Ordinance (Cap. 185), under a Public Notice dated 8th August, 1931, and published in Nigeria Gazette No. 60 of 1st November, 1931, which acquisition is further evidenced by a Certificate of Title dated 28th June, 1937, is the property of Government of Western Nigeria as the successor-in-title of the Government of Nigeria; that the plaintiffs are themselves estopped per rem judicatam by virtue of their admissions in their pleadings and in Suit No. I/136/57 from denying that the Government of Western Nigeria is a tenant of the plaintiffs for the residue of the term of 99 years acquired pursuant to the Deed of Lease therein mentioned; that the plaintiffs are bound by the terms of the Deed of Lease and are therefore estopped from claiming in terms of their writ; that the estate or interest of the Government of Western Nigeria as expressed in the Certificate of Title aforesaid subsists in its favour against any rights, title, interest, trust and demands whatsoever including the claim of the plaintiffs that the plaintiffs have no right in law whatsoever to determine the tenancy of the Government of Western Nigeria having regard to the Certificate of Title and the Deed of Lease aforementioned. It was, however, admitted by the defendant that the rent of 29/- was paid for 1935 to 1963 in respect of the whole of the property, the subject matter of the Deed of Lease of 1st November, 1934 and registered as No. 20 at page 20 in Volume 318 at the Registry of Lands as set out in paragraph 1 of the plaintiffs’ Statement of Claim.

At the trial, the plaintiffs relied on the Deed of Lease of 1st November, 1934, Exhibit A, in the proceedings, the proceeding and judgment in Suit No. I/136/57, Exhibit E; and a letter No. L.7898/28 of 15th August, 1963, Exhibit G. On the other hand, the defendant called one witness, James Adebayo Thomas, a Senior Land Officer, who identified the piece of land known as Acquisition B, that is, the land in dispute as being one of the pieces or parcels of land covered by the Deed of Lease Exhibit A and the Certificate of Title, Exhibit G. Notice of Acquisition dated 8th August, 1931, Exhibit F, a Certificate of Title dated 28th June, 1937 and registered as No. 77 at page 77 in Volume II Exhibit G, and the Statements of Claim and Defence and the two “Further Pleadings” already mentioned by the plaintiffs in Suit No. I/136/57, Exhibits H1, H2, H3 and H4 were then admitted in evidence as part of the defendant’s case.

Counsel then addressed the court at length. In a reserved judgment, the learned trial Judge, after a careful and critical examination of the whole of the evidence in the case and the points of law raised and fully argued before him, declined to grant the declaration sought and dismissed the plaintiffs’ claim. An appeal against that judgment to the Western State Court of Appeal was also dismissed.

In dismissing the appeal, the Western State Court of Appeal said:

“In any event, we do not agree with Mr. Aderemi that a new tenancy has been created. We cannot accept his submission after reading the proceedings which learned counsel referred us to that both appellants and the Government have created a new tenancy whereby Government accepts the appellants as their new landlord. Nothing in these proceedings warrants this conclusion.”

The plaintiffs have now appealed to this court against this judgment. Several grounds of appeal were filed on behalf of the plaintiffs, but at the hearing, Chief Williams, learned Counsel for the plaintiffs’not only abandoned the 2nd item of claim, as endorsed on the plaintiffs’ Writ of Summons but also restricted his submissions to the question as to whether or not on the evidence before the court and having regard to the judgment of the Ibadan High Court in Suit No. I/136/57 a new tenancy had been created between the plaintiffs and the defendant. According to him, the answer to that question must be in the affirmative.

Chief Williams severely attacked the judgment of the Western State Court of Appeal. He submitted that the court was wrong in law to have upheld the judgment of the Ibadan High Court, since, in his contention, the plaintiffs, contrary to the findings of the High Court, could not be bound by the Deed of Lease dated 1st November, 1934, Exhibit A, as they were not parties thereto. Learned counsel further contended that the terms of the judgment of the Ibadan High Court in Suit No. I/136/57, which ordered the rent reserved under the lease to be paid to the plaintiffs who are complete strangers to the said lease contradicted the terms of the said lease and therefore were inconsistent therewith, and must be held to have created a new tenancy between the plaintiffs and the defendant.

These are very attractive submissions, but we do not think that they are sound. Indeed, we are satisfied that they are not well founded. We were not referred to any authority in law for the extraordinary propositions put forward by learned counsel. On the contrary, it is a well-established principle of law that a court cannot make contracts for parties. True, it is that the judgment dated 14/6/63 of the Ibadan High Court in Suit No. I/136/57, awarded the full rent of one shilling per annum reserved under the Deed of Lease, Exhibit A, which covered five different portions of land to the plaintiffs. This only goes to show that, if anything, the plaintiffs have gained. They have been paid more than perhaps their land is worth. On the other hand, it should be remembered that the vendors to the Government under the lease were deemed by the court to have acted as trustees of the plaintiffs’ family. The legal validity of the lease, Exhibit A, was in no way disturbed. Indeed it was not questioned. The lease was not and could not have been set aside because that was not the relief sought by the plaintiffs therein.

Furthermore, learned counsel would appear to overlook certain salient facts. As was observed by the learned trial Judge in the High Court, in their “Further Pleadings” of 23rd January, 1961, filed in obedience to an order of court in Suit No. I/136/57, judgment wherein is binding on both the plaintiffs and the defendant, the plaintiffs admitted the title, right and interest of the defendant as defined and described in the lease, Exhibit A.

It is clear that the plaintiffs therein accepted the Deed of Lease for 99 years dated 8th August, 1931, as well as the rent of one shilling per annum reserved thereunder. All the plaintiffs were therein claiming was that such rent be paid over to them up to the date of judgment and that was what they got. In addition, the 2nd and 3rd defendants were ordered to desist from collecting further rent in respect of the land in question.

In the circumstances, we are of the view that the plaintiffs are estopped both by their conduct and per rem judicatam from asserting that they are not bound by the document under which they have derived benefit. Judging by their conduct they have no cause to complain in all the circumstances of this case. Furthermore, we agree with the learned trial Judge in the High Court that in addition to the Deed of Lease, Exhibit A, the foundation of the judgment in suit No. I/136/57, a Certificate of Title having been obtained by the Government, Section 25 of the Public Land Acquisition Ordinance (Cap. 185) is a complete answer to the plaintiffs’ claim and that this action cannot succeed.

In the result, this appeal fails. It is accordingly dismissed. We make no order as to costs.

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SC.191/1970