John C. Anyaduba & Anor. V. Nigerian Renowned Trading Company Ltd (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

The appellants, on record, as plaintiffs, instituted an action in the High Court of Anambra State (Onitsha Division) in 1978 claiming:-

(i) A declaration of title to the said land on the junction between Nottidge Street, Onitsha and New Market Road, Onitsha, otherwise known as No. 11 New Market Road, Onitsha.

(ii) A declaration that the receipt dated 28th day of March, 1932 was not an instrument and did not transfer title in the land to late Madam Christiana Ibiola, and therefore no legal title to her executors, administrators, legal representatives or assigns or to any person claiming through her to the Defendant.

(iii) N200,000 damages for trespass.

(iv) An Order of Injunction restraining the Defendant, its servants or agents or any other person claiming through it from further trespassing unto the said land.”

From their pleadings and evidence, the plaintiffs, both of whom were legal practitioners, are the children of late Benjamin Odiakosa Anyaduba who they claim owns the piece of land known as 11, New Market Road, Onitsha, and which is situate at the junction of Nottidge and New Market Roads, Onitsha. On or about 12/3/32 their father granted a kola-tenancy, “for her life only,” of the land in dispute to one Madam Christiana Ibiola for which she paid the sum of N120. A receipt was issued by the landlord and witnessed by one Isaac (now Chief) A. Mbanefo (then of the United Africa Company and presently the Odu of Onitsha) in respect of that transaction. A photo-copy of and the original document were later tendered in evidence as Exhibits A and A1 respectively. “On or about” 1938, Mr. B.O. Anyaduba died.

“On or about” the year 1954, Madam Ibiola, allegedly in breach of her kola tenancy, “surreptitiously” leased the property in dispute to Messrs Bata Shoe Co. Ltd. When the plaintiffs threatened her with forfeiture of the land, she apologized and begged to be allowed to remain in possession of the land “for the period of her life,” which plea was accepted by the plaintiffs. Again in 1957 she was further reprimanded “about the lease” (the reason for this is not stated) but she again pleaded for respite, undertaking that the property will revert to the children of late B.O. Anyaduba on the expiration of her current lease to Messrs Bata Shoe Co. Ltd. “On or about” the year 1968, during the Nigerian Civil War, Madam Ibiola died childless. When the lease expired on 31/12/76, the Bata Shoe Co. Ltd. gave up possession of the land to the family of late B.O. Anyaduba. The plaintiffs re-entered the land, took possession thereof and obtained an approved plan in 1977 for a building thereon. At this stage the defendant company also submitted a plan for building on the land which was refused. Claiming ownership of the land as successors-in-title to Madam Ibiola, they heaped moulded blocks on the land. Thereupon the plaintiffs took the present action against them. Soon after, on 28/3/78, the 1st plaintiff died.

The defendant, on the other hand, claims that the late B.O. Anyaduba transferred all his interest in the land in dispute to Madam Ibiola (who was also known as Madam Christiana Ibiolanigbe Oyekanmi) through Exhibit A1 under the kola tenancy land tenure of Onitsha for which she paid N120.00. By virtue of that transaction, she became the kola tenant of the Mgbelekeke family whose kola tenant late B.O. Anyaduba was. She was so recognised by that family. Between 22/8/47 and 19/5/54 Madam Ibiola executed 3 leases of the land in dispute to Bata Shoe Company, details of what are set out in their pleadings, and tendered in evidence, without any let or hindrance from anybody. She made a Will dated 16/7/55 and died, not “on or about 1968” as averred by the plaintiffs but, “on or about the 2nd September 1957”, before the Nigerian Civil War. Probate of her Last Will and Testament was granted to her Executors by the High Court of Eastern Nigeria and subsequently Letters of Administration of her estate were granted to her relations (applicants). It was these administrators who in July 1977, to the knowledge and with the prior consent of their kola landlord, the Mgbelekeke family, leased the land in dispute to the defendant company. Plaintiffs subsequent interference with the user of the land after defendant had taken possession, led to the present action.

In its judgment, after hearing evidence and counsel for the parties, the trial High Court refused to grant declaration of title to the land in dispute because, in its view, title was not in issue between the parties. Because it would work hardship on the plaintiffs it non-suited them on that claim, instead of dismissing same. On Exhibit A1 it found:

(a) that it

“was not meant to be an out and out sale of the land in dispute but was a transaction under that form of native law and custom in Onitsha known as ‘kola tenancy’. That being so, the claim of the plaintiffs that Exhibit A was not an instrument and did not transfer an absolute interest to Madam Christiana Ibiola succeeds.”

(b) that it was not meant to give a life interest only to Madam Ibiola but granted her a kola tenancy, the parameters of which type of tenancy had not been judicially resolved.

(c) that the interest transferred therein – a kola tenancy – cannot be devised by a Will, relying on the Supreme Court decision in Udensi v. Udensi (1976) 7 S.C. 1; and cannot even be inherited under an intestacy.

Finally it refused to grant the plaintiffs any damages for trespass and/or order an injunction because Madam Ibiola dealt with the disputed property as her absolute property for over 30 years, creating leases without any challenge. But having partially succeeded, it granted the plaintiffs N500.00 costs.

Dissatisfied, the defendant appealed only against part of decision of the High Court in which it made

(a) an order of non-suit of the plaintiffs’ claim for a declaration of title

(b) a declaration as to Exhibits A and A1

(c) an order declaring Exhibits E and G null and void; and

(d) an order as to costs.

8 grounds of appeal were filed against the judgment and six issues set out for determination as follows:-

(a) Was the learned trial Judge right in ordering a non-suit in the case and even without hearing the parties on the issue.

(b) Was the learned trial Judge right in granting a declaration as to whether or not Exhibit A and A1 transferred title in the land in dispute to Madam Christiana Ibiola

(c) Was it right for the learned trial Judge to make orders which were not claimed in the case and in respect of which the necessary parties were not before him

(d) Were the plaintiffs/respondents not precluded by laches and acquiescence from obtaining any relief

(e) Did the plaintiffs/respondents prove their case

(f) Was the learned trial Judge right in awarding costs against the defendant/appellant”

In its judgment, the Court of Appeal, allowed the appeal of the defendant mainly on the ground that the learned trial Judge had failed to call on the parties to address him on the order of non-suit before making such an order. It held it was mandatory for him so to do and, since he failed to do so, his judgment had to be set aside; and proceeded to so order. He relied, inter alia, on Craig v. Craig (1966) 1 All NLR. 173; Osayi v. Izozo (1969) 1 All NLR 155; George v. U.B.A. Ltd. (1972) 1 All NLR (Pt.2) 347; Oduola v. Gbadebo Coker (1981) 5 S.C. 179. He found instead “that in view of the evidence adduced and the surroundings circumstances of this case, the kola tenancy between Madam Christiana Ibiola and B.O. Anyaduba still exists and Exhibits A and A1 are agreement of the kola tenancy transaction” He dismissed the plaintiffs ‘claim in the High Court and set aside the whole judgment of that Court together with its order as to costs. He granted costs of the hearing both in the High Court and the Court of Appeal to the defendant/appellant. Both parties were dissatisfied with the judgment of the Court of Appeal and have therefore appealed to this Court.

The plaintiffs/appellants hereafter called “appellants” simpliciter originally filed 10 grounds of appeal. By order of Court dated 4/10/88, they filed 11 grounds of appeal. The defendant/respondent (referred to simply as “respondent” hereinafter). in support of its cross-appeal filed 3 amended grounds of appeal. The appellants’ grounds of appeal, mostly without their prolix particulars, are set out thus:-

1. ERROR IN LAW

The Court of Appeal erred in law in failing to hold that in the absence of the words of limitation – “heirs and successors in title” – in Exhibit” A” “A1” operated to create only life interest in favour of the grantee Madam Ibiola which interest could not pass to anybody on the death of the said grantee.

2. ERROR IN LAW

The learned Justices of the Court of Appeal made a wrong order in dismissing the appellants’ claims having regard to the findings of fact reached when they stated “In conclusion I shall exercise my power under Order 3 Rule 23 of this Court which empowers this Court to give judgment or make any Order that would have been made including any Order of costs. I therefore have to set aside the Order of non-suit granted by Awogu J. in favour of the plaintiffs/respondents. Instead I find that in view of the evidence adduced and the surrounding circumstances of this case, the kola tenancy between Madam Christiana Ibiola and B.O. Anyaduba still exists and Exhibits ‘A and ‘A1′ are agreement of the said tenancy transaction. What I have discussed above are sufficient to dispose of this appeal and I do not propose to deal with the remaining issues, the determination of which would add nothing more to the foregoing discussion.” “In the circumstance the appeal is allowed. I set aside the judgment of Awogu J. dated 14/2/83 including Order for costs, and instead I enter judgment dismissing the Claim of the Plaintiffs/Respondents. I award the appellant N500.00 costs in the lower court and N250.00 for this appeal”

PARTICULARS

(a) The Court of Appeal Justices agreed that there was a relationship of Landlord and Tenant between B.O. Anyaduba and Madam Christiana Ibiola.

(b) They are satisfied that Exhibits “A” and “A1” is the basis for such kola tenancy.

(c) They finally reached the conclusion that the kola tenancy still exists.

(My Note: particulars (d) to (g) omitted).

3. ERROR IN LAW

The learned Justices of Court of Appeal erred in law by giving judgment contrary to the issues joined in the pleadings.

PARTICULARS:

(a) The case of the Plaintiffs is that a life kola tenancy granted to Madam Ibiola in respect of a “MAT HOUSE” at No. 11 New Market Road, Onitsha terminated on the death of Madam Ibiola. (b) The “MAT HOUSE” no longer exists and there is no building on the land now at all. It is vacant land.

(c) Consequently a declaration of title was sought in respect of the land No. 11 New Market Road, Onitsha.

(d) Another declaration sought was to the effect the receipt, Exhibit “A” or “A1” not being an instrument could not pass legal estate in the property to late Madam Christiana Ibiola.

(e) The Defendant’s case was that there was an outright sale of the land to Madam Christiana Ibiola from whose devise the defendant got a lease of the house. The defendant did not even join the alleged lessor.

(f) The Court of Appeal was not called upon to decide whether the land was subject to kola tenancy which subsists after the death of Madam Ibiola. The Court wrongly made the case for itself and wrongly decided accordingly.

4. ERROR IN LAW:

The learned Justices of the Court of Appeal failed to give an interpretation to the whole of the contents in Exhibit “A” and”A1″, especially the words of limitation. The said property has a mat house on it, all of whom I have transferred to the absolute use of the said Christiana Ibiola “herself’.

PARTICULARS:

(a) It is wrong for the Court to state as follows:-

“It (11, New Market Road, Onitsha) was granted to Madam Ibiola for life and she passed it in her Will to her successor.”

(b) This, with full due respect contradictory statement is contrary to the Supreme Court decision in Daniel v. Daniel (195t) 1 F.S.C. 50; (1956) SCNLR 135 and Udensi v. Udensi (1976) 7 S.C. 1.

(c) Once the grant is for life as the Court of Appeal has held, it can therefore not be alienated as the life interest dies with the grantee of the life interest.

(My Note: particulars (d) and (e) omitted)

6. ERROR IN LAW AND MISDIRECTION:

The Court of Appeal erred in law and misdirected itself in the following statement:-

“I have carefully perused the proceedings of this Appeal but I am unable to see any evidence which could establish or from which it could be inferred the extinction of the Kola Tenancy between B.O. Anyaduba and Madam Christiana Ibiola in respect of the land situate at No. 11 New Market Road, Onitsha. It follows that this Tenancy exists to to-day. It was granted to Madam Ibiola for life and she passed it in her Will to her successor.”

PARTICULARS:

(a) Having found that the property was granted to Madam Ibiola for “life”; it is wrong and a very serious misdirection to also hold that she legally and effectively passed it to her successor by Will.

(b) As pointed out (supra) it was held and established in Udensi v. Udensi by the Supreme Court that land subject to Kola Tenancy cannot be alienated by Will and a grant under Kola Tenancy displaces the operation of Administration of Estates Act under which a Will can operate.

(My Note: particular (c) omitted)

7. ERROR IN LAW:

Having made a finding that the land was subject to Kola Tenancy and that the grant was made to Madam Ibiola for life, the Court of Appeal erred in law by dismissing the case of the plaintiff-having regard to the reliefs claimed by the plaintiffs in their statement of claim and pleadings generally.

PARTICULARS:

(a) The first arm of the relief sought was for declaration of title.

(d) The dismissal of the case is not in consonance with the finding of the Court itself.

(e) By dismissing the case as it did and finding that there was still landlord and tenant relationship between the Plaintiffs and Madam Ibiola, the Court granted a remedy which nobody sought. A Court does not make out a case for the parties.

(My Note: particular (b) and (c) omitted)

8. ERROR IN LAW AND NON-DIRECTION:

The learned Justice of the Court of Appeal failed to advert their minds to the fact that Exhibit “A” and “A1” did not create as between ANYADUBA AND IBIOLA, a tenancy IN PERPETUITY, but tenancy which was determinable by process of law, or effluxion of time or such other methods as are agreeable by the parties to the agreement. And in the instant case, having regard to Exhibits “A” and “A1”, a Life Tenancy.

9. ERROR IN LAW AND MISDIRECTION:

The learned Justices of the Court of Appeal erred in law and misdirected themselves when in the lead judgment of Sani Salith Aikawa J.C.A. he stated “The entering of a non-suit implies that an unsuccessful plaintiff is being given another opportunity to litigate on the same matter between himself and the same defendants. It is not possible in this case in view of Section 5(a) of Kola Tenancy Law which requires the Plaintiffs/Respondents to apply for the extinction of Exhibit’ A’ within twelve months from the commencement of this law i.e. from 1st October 1935,”

PARTICULARS:

(a) Before making the Order of non-suit Mr. Justice F.O. Awogu in the High Court cautioned himself in the following words:-

“It is also my view that it may well work injustice against the plaintiffs to dismiss the claim. A more appropriate order would be a non-suit. Ordinarily, I should have invited the parties to address me on the point before making the Order. In the present case however, the defendant have(sic) not put any title in issue.

Accordingly the plaintiffs are hereby non-suited in respect of the claim to a declaration of title in respect of land in dispute at No. 11 New Market Road, Onitsha.”

(My Note: particulars (b) to (j) omitted)

10. Judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.
11. The learned Justices of the Court of Appeal erred in law in dismissing the Plaintiffs/Respondents/Appellants case in its entirety after merely reversing the Court of trial on its decision to non-suit the Plaintiffs.

PARTICULARS

(a) In addition to the order of non-suit, in favour of the Plaintiffs, the Court of trial granted the plaintiffs a declaration that Exhibit’ A’ and’ A1′ was not an instrument and did not transfer absolute title on Madam Ibiola as claimed (by) in their Writ of Summons (relief No. ii)

(b) The Court of Appeal judgment did not say anything about this aspect of the trial Court’s judgment nor was the judgment reversed on that point.

The respondent’s three grounds in support of its cross-appeal are as follows:-

(1)(a) That the Court of Appeal erred in law in introducing into the appeal before it issues which were not raised by the grounds of appeal.

PARTICULARS OF ERROR

(i) That no issue was raised in the appeal as to

(a) the interpretation of Exhibit “A’ (or “A1”).

(b) whether or not Madam Christiana Ibiola’s Kola Tenancy was for life

(c) the existence of any further relationship between Christiana Ibiola and the late B.O. Anyaduba

(d) the application of the Kola Tenancy Law Cap. 69 Laws of Eastern Nigeria to the case

(e) the extinction of Madam Christiana Ibiola’s Kola Tenancy

(ii) That the Court of Appeal could only deal with issues which were properly before it.

(b) That the Court of Appeal erred in law in holding that a Kola Tenancy was granted to Madam Ibiola for life as this was neither based on nor borne out by the evidence before the Court.

2. That the Court of Appeal misdirected itself in law in holding that it was accepted that Exhibit “A” was the agreement of the Kola Tenancy between Christiana Ibiola and the late B.O. Anyaduba as there was no such acceptance and in particular Exhibit” A” was not registered under the Land Instruments Registration Law.
3. That the Court of Appeal erred in law in failing to determine all the issues raised by the defendant/appellant.

PARTICULARS OF ERROR

(i) That the defendant/appellant had the constitutional right to a determination of all the issues it raised in the appeal before the Court of Appeal.

(ii) That amongst the issues which the defendant appellant raised and argued before the Court of Appeal were:-

(a) Did the plaintiffs/respondents prove their case

(b) Were the plaintiffs/respondents not precluded by laches and acquiescence from obtaining any relief

(c) Was the learned trial Judge right in granting a declaration as to whether or not Exhibit A and A1 transferred title in the land in dispute to Madam Christiana Ibiola

but the Court of Appeal failed to determine the said issues.

(iii) That on the argument presented by the defendant/appellant in respect of the issues set out under (ii) above the Court of Appeal was bound to dismiss the plaintiffs/respondents’ case in toto on those issues.

From their 11 grounds of appeal the appellants distilled the following to issues for determination in their brief:-

(1) Is the declaration made by Mr. Justice F.O. Awogu that “the receipt dated 28th of March 1932 was not an instrument and did not transfer title in the land to late Madam Christiana Ibiola, and therefore no legal representatives or assigns or any person claiming through her to the defendant” which declaration was affirmed by the Court of Appeal, not sufficient to end the matter and the property to revert back to Anyaduba having regard to the fact that the grant was for the life of Ibiola

(2) Did the Court of Appeal adopt the correct approach when after adopting the conclusions of Awogu, J. in respect of Exhibits A and A1, it turned round to dismiss item (i) of the appellants’ claim for declaration of title because the trial Judge failed to call on the counsel to address him before making an order of non-suit. And furthermore whether, in view of the remarks of the trial Judge before non-suit whether it is mandatory and not merely desirable to call Counsel to address it before making an order of non-suit.

(3) Did the Court of Appeal apply the correct law, when after holding that “instead I find that in view of the evidence adduced and the surrounding circumstances of this case, the Kola Tenancy between late Madam Christiana Ibiola and B.O. Anyaduba still exists and exhibits’ A’ and ‘A1′ are agreements of the said Kola Tenancy transaction”, the Court of Appeal proceeded to dismiss the Appellants claim on declaration of title, which leaves the tenant Ibiola, without a Landlord.

(4) Whether the learned Court of Appeal Justices were right in holding that, the late Madam Ibiola devised by her Will the property known as No. 11 New Market Road, Onitsha after having held that same was the subject of Kola tenure contrary to settled principles on the point that a property subject to kola tenure is not alienable by Will.

(5) Whether it is mandatory and not merely desirable that before a court could make an order of non-suit, it should invite counsel on both sides to address it on the propriety or otherwise of making the order even in cases where it would serve no useful purpose doing so.

(6) Whether the Court of Appeal was right in holding that a kola tenancy once unextinguished by grantor as provided under S.5(a) Kola Tenancy Law No. 25 of 1935 Cap. 69 Laws of Eastern Nigeria Vol. IV created an estate in perpetuity in favour of the grantee, when it is obvious from Exhibits “A” and “A1” that the grant was for the life of Ibiola “HERSELF”

(7) Whether in the circumstances of the case, the Court having found that the Appellants had proved their title but was of the view that the persons alleged by the Respondent to be owners of the land (the Mgbelekeke family) were not joined and the Respondents themselves had not claimed title in defence and did not join issues on the point, the order of non-suit as to title was improper and the Court of Appeal ought not to have declared title in favour of the appellants, having regard to all the circumstances of the case.

(8) Whether the equitable doctrine of laches, and long possession can enure against a true owner of property even though he did not know of the adverse possession of the Respondent

(9) Did Exhibits “A” and “A1” create anything more than that they gave late Madam Ibiola “HERSELF” possessory title over the Mat House at No. 11 Market Road for her life

(10) Did the Respondent prove the fact of sale of No. 11 New Market Road 10 Ibiola by Anyaduba which was the gravamen of Respondent’s case .

In answer to the appeal, the respondent in its brief set out six issues for determination thus:-

(a)(i) What exactly was the declaration granted by the trial court to the plaintiffs/respondents/appellants in respect of Exhibits “A” or “A1” and did the Court of Appeal affirm the said declaration

(ii) Did Exhibit “A” or “A1”, a receipt issued in a customary law transaction call for any construction or interpretation as if it were an instrument

(b)(i) Was the Court of Appeal right in dismissing the plaintiffs/respondents/appellants’ claims in toto

(ii)Did the plaintiffs/respondents/appellants prove their claim for a declaration of title to the land in dispute.

(iii) Were the plaintiffs/respondents/appellants entitled to a declaration in respect of Exhibit “A” or “A1”

(c) What is the effect of the plaintiffs/respondents/appellants’ failure to appeal to the Court of Appeal against the Order of non-suit made by the trial Court

(d) What is the effect of the Court of Appeal holding that it was not necessary to deal with the remaining issues in the appeal before it

(e) Will the plaintiff/respondents/appellants be allowed to take advantage of the decisions of the Court of Appeal on issues which were not properly before it and which it introduced into the appeal itself

Three other issues were raised for determination in the respondents cross-appeal as follows:-

(a)(i) Was Exhibit “A” an agreement for the transfer of land under Kola Tenancy and was it accepted as such by the parties

(ii) Was the Court of Appeal right in holding that a Kola Tenancy was granted to Madam Ibiola for life

(b) Was the Court of Appeal right to raise for itself issues which were not covered by the grounds of appeal and to make findings thereon”

(c) Was the Court of Appeal right in failing to determine all the issues raised by the defendant/appellant in its appeal to it and what is the effect of those issues on the plaintiffs/respondents’ case

In addition to filing briefs, counsel for the parties proffered oral arguments before us.

As shown above both the grounds of appeal filed by the plaintiffs and the issues their counsel has set out for determination in their brief are unnecessarily prolix and consequently repetitive. Issues have been framed on matters not on appeal before the Court of Appeal both by the appellant in that Court (the respondent here) and the respondents in that Court (the appellants here). In order to determine the limited issues in dispute in the appeal, I propose to quickly dispose of these offending issues. Issues 7, 8 and 9 which have been set out fully hereinbefore, and I do not propose to re-state them here, relate to findings/decisions of the trial Court against the appellant (plaintiffs) which they did not appeal against to the Court of Appeal. It is trite that they cannot therefore seek to impugn these findings/decision vide Obioma & Ors. v. Olomu & Ors. (1978) 3 S.C. 1; Onibudo v. Akibu (1982) 7 S.C. 60(62/3): F.C.D.A. v. Naibi (1990) 3 NWLR (Pt.138) 270. Issue 7 for instance is asking this Court in effect to hold that the trial court should have given it judgment in respect of declaration of title it sought. There was no appeal by either party against the decision. Issue 8 not only has not been related to any decision of the Court of Appeal but it is, as framed, purely academic. The equitable doctrines sought to be canvassed were referred to in the trial court, where the learned trial Judge refused to grant any damages for trespass because Madam Ibiola had dealt with the land in dispute for over a period of 30 years as her absolute property and unchallenged. The present appellants did not challenge this finding, and the subsequent decision on damages for trespass based therein, on appeal to the Court of Appeal. Raising the doctrine on which this decision is said to be based as an issue in this appeal, is therefore tantamount to relying on an irrelevancy. It is true that the defendant did refer to these doctrines on appeal, when it sought for a determination by the Court of Appeal whether the plaintiffs/respondents are not precluded by “laches and acquiescence” from obtaining any relief. The issue thus raised can, at best, relate to the only relief granted the plaintiff by the trial court, to wit, a declaration on its second head of claim, which is, that Exhibits” A” (“A1”) not being an instrument does not convey an absolute title to the land in dispute to Madam Ibiola but only a kola tenancy. That surely is not what the academic question in Issue 8 as framed, seeks to address. Issue 9 also should never have been raised before this Court. The learned trial Judge had made a clear finding on the effect of Exhibits A (or A1), to wit, that whilst it did not transfer absolute title to Madam Ibiola, it witnessed the grant of interest in the land in dispute to her known to customary law – kola tenancy. It also found that it did not give her only possessory title over a Mat House. Consequently, to upset those findings there must be an appeal to the Court of Appeal against them. Neither the defendant (which appealed) nor the plaintiffs challenged those findings on appeal. The defendant merely challenged the exercise of that claim since it is obvious that Exhibit A and A1 are not instruments but receipts which may at best be said to be “coupled with a memorandum.” In these circumstances, that issue is not before this Court. Issue 10 is also irrelevant. The learned trial Judge’s FINDING THAT THERE WAS NO SALE OF THE LAND TO Madam Ibiola was not an issue on appeal to the Court of Appeal. The matter therefore ends there.

Before framing the issues which I consider arise for determination in this appeal, it is convenient to dispose of one more issue, which is based on a misstatement of the finding of the learned trial Judge. I refer to Issue I which I will restate our emphasis. It asks:-

“1. Is the declaration made by Mr. Justice E.O. Awogu that ‘the receipt dated 28th day of March 1932 was not an instrument and did not transfer title in the land to late Madam Christiana Ibiola, and therefore no legal representatives or assigns or any person claiming through her to the defendant’ which declaration was affirmed by the Court of Appeal, not sufficient to end the matter and the property to revert back to Anyaduba having regard to the fact that the grant was for the life of Ibiola

What is credited to the learned trial Judge here, on the basis of which the conclusion sought is arrived at, is not what the learned trial Judge found (or said). In his judgment, at page 47 lines 17-25 of the record of proceedings, the learned trial Judge stated thus:,

“Accordingly, I find that Exhibit A1 was meant to be an out and out sale of the land in dispute, but was a transaction under that form of native law and custom in Onitsha known as “kola tenancy”. That being so, the claim of the plaintiffs that Exhibit A1 was not an instrument and did not transfer an absolute title to Madam Christiana Ibiola succeeds. This, however, is not the end of the matter. I must next examine the interest, if any, which Madam Ibiola could possibly transfer, either under a Will or on intestacy.”

(Note: Italics mine)

I note in passing that the trial Judge then proceeded to find that what Madam Ibiola got from B.O. Anyaduba was NOT only a life interest. The crucial word which appellant’s counsel omitted in his statement of Issue 1 is the word “absolute”. What in effect the trial Judge found in the passage set out above is that a limited (not absolute) interest, to wit, a kola tenancy, was transferred. That conclusion was indeed confirmed by the Court of Appeal. The Court of Appeal also confirmed the finding that Madam Ibiola had more than a life interest hence it held the interest was not extinguished by her death. In view of these two mis-statement of the finding of the trial court as confirmed by the Court of Appeal, the foundation on which Issue 1 stands is non-existent. The answer to the Issue as framed is therefore a clear No!

After considering the appellant’s remaining five issues, and those of the respondent, I have come to the conclusion that the following are the issues for determination in this case:-

“1. Whether the Court of Appeal was right in its decision on the trial court’s order of non-suit

2. If the answer to (1) is the affirmative, was the Court of Appeal right to have substituted therefore an order of dismissal of plaintiff’s claim.
3. Are the following ancillary (sub) issues in which the Court of Appeal made some findings relevant and/or necessary for a determination of the main (and proper) issues

If they are, did those findings adversely affect the court below’s final order, so as to lead to a miscarriage of justice

(a) Whether or not Madam Ibiola can devjse her interest on the land in dispute by Will to anyone.

(b) Whether the Court of Appeal’s finding, as to the effect of the Kola Tenancy Law No. 25 of 1935 on Madam Ibiola’s interest on the land in dispute, is correct.

I will begin with the ancillary issues for determination i.e. 3(a) and (b) above.

Speaking of the tenancy granted Madam Ibiola by B.O. Anyaduba, the Court of Appeal, per Aikawa, J.C.A. stated that:

“It was granted to Madam Ibiola for life and she passed it in her Will to her successor”

(Note: Italics mine)

It is on this remark (observation), which is really not a finding as such, that Issue 3(a) is based. In their brief, the appellants have submitted that it is a finding which was made per incuriam, because decisions of the Supreme Court in which it was held that an interest held under kola tenancy could not be transferred by Will, were not brought to the notice of the Court of Appeal, which therefore did not consider them. These are Daniel v. Daniel (1956) 1 F.S.C. 50, (1956) SCNLR 135 and Udensi v. Udensi (1976) 7 S.C. 1 (16). Before deciding whether to go into the merits of this submission, I have first to ascertain whether this sub-issue was before the Court of Appeal for adjudication or whether it went off on “a frolic of its own” in considering it. If it is the former, then a consideration of the “finding” on its merits will be called for; unless of course the “finding” did not affect the Court of Appeal’s final decision. If it is the latter, then the “finding” can be disregarded as irrelevant. Respondent’s counsel has argued in his brief that the issue of devising Madam Ibiola’s kola tenancy by Will did not arise for determination in the High Court because there was no claim before the Court between any person claiming under her Will. Although there was no claim specifically relying ex facie on this issue before the Court, it will be necessary to examine the pleadings of the parties in order to decide whether issues were joined thereon. This sub-issue was not pleaded or alluded to in any way, in the statement of claim. It however surfaced in the statement of defence, paragraphs 12, 13, and 14 of which read as follows:-

“12. Late Christiana Ibiolanigbe Oyekanmi made a Will dated 16/7/55. She died on or about 2nd September, 1957. Probate of her Last Will and Testament was granted to one of her Executors and Trustees by name Shittu Olanrewaju Sunmonu by the High Court of Eastern Nigeria. By Motion No. E/10M.76 Letters of Administration were granted to Christopher Abolade Ayoade, Lawrence Laiwola Oyekanmi and Emmanuel Molekeola Oyekanmi by the High Court of Anambra State of Nigeria on the 16th day of November, 1976.

13. In the true spirit and intendment of the Kola Tenancy System of land tenure of Onitsha the Executors and Trustees of the Last Will and Testament of Madam Christiana Ibiolanigbe Oyekanmi sought the recognition of the Superior Landlords the Mgbelekeke Family of Onitsha which was readily granted. The Defendants will found and rely on Deed of Conveyance dated 20/7/77 and Registered as Bi. 8 at page 8 in Volume 980 of the Lands Registry in the Office at Enugu.
14. By a Deed of Lease dated the 22nd day of July, 1977 and Registered as No.47 at page 47 in Volume 960 of the Lands Registry in the Office at Enugu the Executors and Trustees of the Last Will and Testament of Madam Christiana Ibiolanigbe Oyekanmi leased the said No. 11 New Market Road, Onitsha to the Defendants. The consent of the Superior Landlords the Mgbelekeke family of Onitsha was duly sought and secured.

(Note: Italics mine)

It has to be observed at once that the defendant (respondent) did tender the Will as Exhibit G. He also tendered the order granting letters of administration to Madam Ibiola’s relations/applicants, on which it is stated that the Probate of her Will granted on 2/9/57 “is hereby revoked” (Exhibit D refers). The learned trial Judge in his judgment, did however proceed to consider this sub-issue and after citing Udensi v. Udensi (supra) stated that:

“The Defendants, on the other hand,contend that the land in dispute has been disposed of by the Will of Christian a Ibiola. I must therefore examine whether or not such property is disposable by Will ….. Thus neither under her Will (Exhibit G) nor under intestacy could Madam Ibiola have disposed of all, New Market Road, Onitsha to her Administrators”

The sub-issue was therefore before the trial court which decided on it. From that court the respondent did not appeal on that issue to the Court of Appeal. This is confirmed by the issues for determination in that court as settled by the appellant there (respondent here). The observation of the Court of Appeal which appellant has elevated to the status of a finding is therefore unnecessary for a decision by it and can be adjudged irrelevant. It certainly did not affect the final decision of that court, and therefore is undeserving of consideration as to its merits.

The complaint of the appellants on Issue 3(b) is stated in their brief, where they asked the question

“Was the Court of Appeal right in holding that since the plaintiffs did not extinguish the kola tenancy under S.5(a) of the Kola Tenancy Law, there was thereby created a tenancy in perpetuity.”

Here again I think the reference to and use of the Kola Tenancy Law has been misconstrued by the appellants. After confirming the finding of the trial court that the land in dispute was held under a kola tenancy, the Court of Appeal (per Aikawa, J.C.A.) referred to section 2 of the Law defining what a kola tenancy is, and thereafter section 5 which provides for the extinction of the tenancy if the grantor thereof (in respect of land situate in Onitsha Urban County) applied within 12 months of the commencement of the Law i.e. on or before 1/10/36. He then continued as follows:-

“I have carefully perused the proceedings of this appeal but I am unable to see any evidence which could establish or from which it could infer the extinction of the Kola Tenancy between B.O. Anyaduba and Madam Christiana Ibiola in respect of the land situate at No. 11 New Market Road, Onitsha. It follows that this tenancy exists up to today.”

By this findings, what the Court of Appeal was saying is not that the non-extinction of the Kola Tenancy created a tenancy in perpetuity, but that a kola tenancy already created (granted) by B.O. Anyaduba continued to exist since it had not been extinguished. Nowhere did the court below state that the only way of extinguishing a kola-tenancy is by recourse to the Kola Tenancies Law (supra). That sub-issue was never before it. The only other use the court made of the Kola Tenancy Law is to observe that a non-suit cannot be justified on the ground that an extinction of the tenancy can be obtained under it, if the plaintiffs were given “another bite at the cherry,” because the time provided under the Law for extinguishing the tenancy had expired. Furthermore there was no appeal against the finding of the trial court that Madam Ibiola obtained a kola tenancy from B.O. Anyaduba. Nor was it canvassed that one of the reasons for non-suiting the appellants’ claim for declaration of title was to give them a chance to seek extinction of the kola tenancy by applying under the Kola Tenancies Law. The observations/findings of the court below complained of are really irrelevant to and unnecessary for a determination of the present appeal. The complaint under his sub-issue 3(b) therefore fails.

I now come to the two main issues before this Court in this appeal; Issues 1 and 2 as framed by me earlier in this judgment. I propose to state them both together. These Issues have been addressed in their brief by the appellants in argument under their Issues 2 and 5; and in oral submissions before this Court. It is the contention of appellants’ counsel that the practice of calling on counsel on both sides of a case before it by a trial court, to address it on the propriety or otherwise of making an order of non-suit before that order is made, is merely a permissive and not a mandatory rule. In support of this submission counsel has referred to and relied on the cases of Mustapher Dawodu v. Gomez (1947) 12 WACA 151; Craig v. Craig (1967) NMLR 55; Robert Osayi v. Ogude Izozo (1969) 1 All NLR 155; Oduola v. Coker (1981) 5 S.C. 197. ln these cases, he further submitted, the view of the courts has been that the making of an order of non-suit is a matter for the trial courts discretion, before the exercise of which it is desirable (and not mandatory) for counsel on both sides to be heard. He submitted that in the case of Osayi v. Izozo (supra) where the trial court failed to hear counsel before making an order of non-suit, it was held that the justice of the case would not justify an order of dismissal, and the case was remitted for retrial by the trial court. In so doing the Supreme Court also stated that it would not supplant the view of the trial court with its own views. Counsel further likened the desirability of hearing counsel when an order of non-suit is contemplated to the practice in criminal law by which corroboration is required in certain class of cases. Where such corroboration is wanting, the trial Judge can proceed to convict if he sufficiently warns himself of the dangers of relying on uncorroborated evidence to convict. In the present case on appeal the learned trial Judge had warned himself adequately before proceeding to make an order of non-suit when he stated thus:-

“While I am unwilling to grant the declaration for the reasons given above, it is also my view that it may well work injustice against the plaintiffs to dismiss the claim. A more appropriate order would be a non-suit. Ordinarily, I should have invited the parties to address me on the point before making the order. In the present case, however the defendants have not put any title in issue: Accordingly the Plaintiffs are hereby non-suited”

(Italics supplied by trial court)

Counsel then concluded his submissions thus:

“With respect not only was the learned trial Judge at home with the rules and the desirability of calling on the parties to address him on the point before making the order, he also was acting in keeping with the age old maxim that the court does not act in vain for it would have amounted to stultifying itself if the learned trial Judge had gone ahead to call on the defendant to address him on the probable injustice it would have suffered in the event of his non-suiting the Plaintiffs with regard to their claim for title. In its defence, the defendant had not claimed title to the land nor did it even join issues with the Plaintiffs on that point.”

In reply to appellants’ counsel submissions, respondent briefly stated in its brief as follows:-

“The plaintiffs/respondents/appellants never appealed to the Court of Appeal against the Order of the trial court non-suiting them in their claim for a declaration of title to the land in dispute. By this failure the plaintiffs/respondents/appellants admitted that they failed to prove their title to the land in dispute as there can be no question that they accepted the Order of non-suit by the trial court. It is therefore submitted that the plaintiffs/respondents/appellants cannot in this appeal rightly pray the Supreme Court for a declaration of title to the land in dispute,”

This submission is not very helpful in determining the issue being considered. The appellants have not asked for a declaration of title to be ordered in their favour in this appeal. They are fully aware that they have not appealed against the order of non-suit. That does not however mean that where the Court of Appeal decides, on the invitation of the respondent (appellant before it), that the correct order which the trial court should have made is one of dismissal (not non-suit), and proceeds to so order, the appellants cannot challenge on appeal a final order (of dismissal) which prevents if from having a second chance of proving its claim for a declaration of title to the disputed property.

The question as to when a dismissal or a non-suit should be ordered in a case has been the subject of many decisions of the appellate courts. In Dawodu v. Gomez (supra), the West African Court of Appeal made it clear that there was no hard and fast rule as to when a non-suit can be ordered instead of a dismissal. Each case it held must be considered on its merits. The fact that the defendant cannot also prove his title where the plaintiff has failed to prove his title is never a sound reason for an order of non-suit to be made. The decision to order a non-suit-instead of a dismissal should be exercised with great care. It did not however consider the real contention in Issue 1 (as framed by me) in this appeal i.e. the propriety and consequence of making an order of non-suit without first hearing counsel thereon. In Craig v. Craig (supra), where the plaintiff’s claim was dismissed by the court of trial, and the Supreme Court on appeal was minded to order a non-suit, it invited learned counsel’s submission on the matter before making that order. It held that where a non-suit order is contemplated by a court, it is desirable that it should first hear counsel on the issue. In Robert Osayi v. Ogude lzozo (supra), which appellants counsel relied on, it was held (Ratio I) that:-

“It is important that a trial Judge, should hear counsel before entering a non-suit, if this had been done here the present unsatisfactory position would never have arisen. Having regard to this and to the fact that the trial Judge made no findings of fact the Appellant was entitled to have the matter determined on its merits once he has been brought to court and to ask the Supreme Court for a re-trial, especially having regard to the order that the trial Judge made as to costs before him.”

(Note: Italics mine)

Here, the need to hear counsel before making an order of non-suit was elevated from being merely desirable to important. The fact that an order of retrial was nonetheless made instead of an order of dismissal resulted from the failure of the trial court to make findings of fact on important issues raised and the refusal of the Supreme Court to interpose its own views/findings for those of the trial court. In Oduola v. Coker (1981) 5 S.C. 197; the Supreme Court recalled the parties for counsel to be heard on the propriety of ordering a non-suit even after adjournment for judgment. Obaseki, J.S.C. in his judgment stated that:-

“This step is in consonance with several decisions of this Court to the effect that before a non-suit is ordered, the court making such an order should invite and hear argument from counsel acting for the parties in the case. This is because a non-suit implies giving an unsuccessful plaintiff another chance of proceeding again in the cause against a defendant, who, in any event, is not entitled to judgment. Craig v. Craig (1966) 1 All NLR p. 173; Osayi v. Izozo (1969) 1 All NLR p. 155; Onwualu v. Osademe (1971) 1 All NLR p.14.”

In this instance, the decision that counsel should be heard before the order is made would appear less directory (and more mandatory) than the decision that such a course is desirable. In Agagu v. Dawodu (1990) 7 NWLR (Pt.160) 56, although admittedly a decision of the Court of Appeal, the decision of this Court in Omoregbe v. Lawani (per ldigbe. J.S.C.) (1980) 3-4 S.C. 108 (116) and Aigbe v. Edokpolor (1977) 2 S.C. 1 were cited and relied on. It was held to be settled law that where the court is in some difficulty as to whether to order dismissal or non-suit, it is prudent to invite and entertain argument on the issue from counsel. In that case this was not done, and where evidence led showed plaintiff should succeed, the order of non-suit made by the trial court was set aside and judgment entered for the plaintiff.

My view of the position of the law having regard to these decisions, and taking into account the submissions of appellants’ counsel, is that the requirement that counsel should be heard before an order of non-suit is made is no longer merely desirable, it is not only prudent but important. Failure to observe this course of action will in most cases lead to an appeal against the order of non-suit made being set aside except it is very obvious and incontestable, on the evidence before a trial court and the law applicable therein, that an order of non-suit is the only order it can make in the case, in the exercise of its discretion.

In the present case on appeal, it is the claim for a declaration of title to the land in dispute that was non-suited. The plaintiffs did not and could not prove that claim because in the trial court’s finding, supported by the court below, the land was given out on a kola-tenancy which continued to exist beyond the life of Madam Ibiola (the grantee). This is a finding of fact which cannot be dislodged by any other evidence in any subsequent action. It totally excludes the possibility of an action for declaration of title as claimed succeeding. It is true that the trial court anchored its refusal to grant the order of declaration sought on his finding that title was not in issue between the parties, because at best what the defendant (respondent here) was contesting was a lease-hold title granted by the successors-in-title of Madam Ibiola, who were not parties to the action. That fact notwithstanding, having heard all the evidence and come to the conclusion that what existed between the late Ben Anyaduba and Madam Ibiola was a kola tenancy (of unlimited duration), he should have proceeded to make an order dismissing the claim for a declaration and not non-suiting same, it being totally at variance with that crucial finding of fact by him. In addition the appellants completely failed to prove their root of title in that:-

(a) they led no evidence to establish that they are successors to Ben Anyaduba (deceased). Madam Ibiola’s grantor; and

(b) they also did not lead any evidence to show where B.O. Anyaduba’s alleged vendor – a Sierra Leonean – brought the land in dispute from.

Such failure can only result in a dismissal of an action for declaration of title vide Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt.7) 393. What is more, the learned trial Judge did not show in what way an order of dismissal would result in injustice being done to the appellants. The mere fact that according to him title was not put in issue does not justify his not calling upon counsel to be heard on the order of non-suit. As I have shown above, defendant’s counsel may have convinced him that a decision hinged on that technical umbrella would not do justice to the parties in the light of his findings of fact, and the abundant evidence before him. The only ground on which the exercise of his undoubted discretion to order a non-suit can be supported is, as I have stated earlier, that it is the only very obvious and incontestable order he can make on the evidence before him. That is far from being the case here as I have also shown. He was therefore very wrong in not hearing counsel before making an order of non-suit, and the Court of Appeal was right in so holding. On the facts of the case and the applicable law, the correct order he should have made was one dismissing the claim for a declaration. The Court of Appeal has the power to substitute that order for the “Order of non-suit which he made, vide Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt.193) 517, a recent decision of this Court, where the exercise of such power by the Court below was upheld as correct and confirmed by this Court. The answers to the two main issues considered are therefore in the affirmative. This appeal must therefore fail.

I will consider the cross-appeal very briefly in view of the decision I have arrived at on the appeal. It is not necessary to consider Issues (a)(i). With regard to Issue (a)(ii), there is no doubt that the Court of Appeal appeared to have confused itself (per Aikawa, J.C.A.) when it held that:-

“It follows that this tenancy exists up to today. It was granted to Madam Ibiola for life and she passed it in her Will to her successor.”

The very statement itself contains conflicting findings. The first, that the Kola Tenancy exists up to today which confirms the decision of the trial court. The second, that it was granted to Madam Ibiola for life. It cannot therefore exist up to today because Madam Ibiola died in 1957. The third that she passed it on to her successors in her Will. How can she do that if the tenancy terminates at the end of her life The subsequent statement/findings of Aikawa, J.C.A. in his judgment clearly show however that the first and third findings in the statement set out above are the correct ones, and that the second statement must have been made in error. In any event, as respondent’s counsel has argued correctly there was no appeal before him against the finding of the trial court that the grant of Kola Tenancy to Madam Ibiola was not for life, but under the customary laws governing such tenancy. His finding to the contrary is therefore without any jurisdiction, and is null and void. This ground of cross-appeal therefore succeeds.

The answer to Issue (b) and first pan of Issue (c) is in the negative. To the extent to which the Court of Appeal so erred, and some of these have been considered earlier in this judgment, the cross-appeal succeeds. Normally the answer to the first part of Issue (c) is in the negative. An appellate court has a duty to consider all the issues placed before it vide Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131. But in the instant case the issue on which the appeal was decided was the most important “live” issue before it, challenging as it does the order of non-suit on the claim for declaration of title. If a court of appeal is of the view correctly that a consideration of one issue is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed. If however it is erroneous in its decision, the consequence may be the setting aside of its decision on appeal with an order for re-hearing. The Court of Appeal was right in its decision here, and its failure to consider those other issues has not led to miscarriage of justice.

In conclusion, the appeal fails and is hereby dismissed. For the avoidance of any doubt, the land in dispute is still under the kola tenancy granted Madam Ibiola by the late B.O. Anyaduba. The cross-appeal partly succeeds as set out above.

The respondent is entitled to costs of this appeal which I assess at N1,000.00 only against the appellants.M. L. UWAIS, J.S.C: I have had the opportunity of reading the judgment by my learned brother Uche Omo, J.S.C. I agree with his reasonings and conclusion.

Accordingly, the main appeal has failed and it is hereby dismissed. The cross-appeal succeeds in part and it is hereby allowed. Costs of N1,000.00 are hereby awarded against the appellants in favour of the respondent.A. B. WALI, J.S.C.: I have had a preview of the lead judgment of my learned brother, Omo. J.S.C., I agree with the reasons he gave for dismissing the main appeal as well as partially allowing the cross-appeal.

For those same reasons given in “the lead judgment of my learned brother Omo, J.S.C, I also hereby dismiss the main appeal and allow the cross-appeal in part. I endorse the consequential order as to costs made in the lead judgment.I. L. KUTIGI, J.S.C: I read in advance the judgment of my learned brother Uche Omo, J.S.C. just delivered. I agree with the reasons and conclusions therein. Accordingly I will also dismiss the appeal and allow the cross-appeal in part and endorse the order for costs.

P. NNAEMEKA-AGU, J.S.C. (DISSENTING): This is an appeal by the plaintiffs who were the successful party in this suit in an Onitsha High Court. The claim was for:

(1) a declaration of title in favour of the plaintiffs to the piece or parcel of land known as No. 11 New Market Road Onitsha;

(ii) a declaration that a receipt dated 28th day of March, 1932. was not an instrument and did not transfer title to the said land to Madam Christiana Ibiola and therefore legal title to her executors, administrators and legal representative or assigns or to any person (such as the defendant) claiming through her;

(iii) N200,000.00 damages for trespass and;

(iv) an order of injunction

Awogu J., as he then was, after hearing non-suited the plaintiffs on the claim for title, granted the second declaration sought and dismissed the claims for trespass and injunction.

On appeal, the Court of Appeal, per Aikawa J.C.A., Aseme and Katsina-Alu J.J.C.A. concurring allowed the appeal, set aside the judgment of the learned trial Judge and dismissed the plaintiffs’ claim in its entirety.

On appeal to this Court, my learned brother, Omo, J.S.C. has gone into the issues in contention in the appeal and reached a conclusion that the appeal should be dismissed. I deem it necessary to take a close look at the factual bases of the decision. I shall deal with them according to point headings.

The Issue of Title

After hearing, the learned trial Judge made a number of findings and reached a number of conclusions on the issues joined before him. Some of them were:

(i) That Exh. E, the conveyance dated 20th July 1977 of the land in dispute by Mgbelekeke family to the defendant’s vendors was the first involvement of Mgbelekeke family with the land in dispute. In particular he doubted why the family did nothing when Anyaduba sold the land to Madam Ibiola as per Exh. A and A1: Animashaun v. Osuma & Ors. (1972) 1 All N.L.R. (Pt. 1) 363.

(ii) He held: “From the evidence before me, it appears and I so hold, that the Mgbelekeke family has not established any right of ownership in respect of the land in dispute.”

(iii) He further explained that the family was first alerted about the land in 1976, when the plaintiffs before they discovered Exh. A, and came to know the true facts about the land, approached the family. It was then they (plaintiffs) swore to the affidavit, Exh. B., which they have now explained away. He concluded that the plaintiffs are not estopped from denying the title of Mgbelekeke to the land in dispute because of Exh. B (p. 44 11, 20 to 31)

(iv) The plaintiffs maintain that their father is the owner of the land.

This assertion is reinforced by Exh. G, the will of Madam Ibiola.

(iv) To put paid to the interest of Mgbelekeke family over the land he held:

“Accordingly, I reject the contention of the Mgbelekeke family that late Anyaduba forfeited his interest in the land in dispute and so the land reverted to the Mgbelekeke family.”

Then on these findings the learned trial Judge proceeded to consider the plaintiffs’ claim for title. Then he came to one further conclusion which is significant.

He asked:

“This being so, was title in issue as between the parties to this action I do not think so, and it seems to me to be an abuse of the judicial process to seek to obtain a declaration of title against a person who does not claim title to the land.”

(Italics mine)

Then he proceeded to consider what appropriate order to make and, on the premises that it could work injustice against the plaintiffs, he opted for a non-suit, and made the order accordingly, without hearing the parties on it.

What did the Court of Appeal do about the above findings Significantly, that Court did not disturb any of the above findings. Rather it took the view that the kola tenancy was between Anyaduba and Ibiola. It held:

“I have carefully perused the proceedings of this appeal but I am unable to see any evidence which could establish or from which I could infer the extinction of the Kola Tenancy between B.O. Anyaduba and Madam Christiana Ibiola in respect of the land situate at No. 11 New Market Road Onitsha. It follows that this tenancy exists up to today. It was granted to Madam Ibiola for life and she passed it in her will to her successor.”

This rather reinforces the view that Mgbelekeke family does not come into contention, and that it was a straight one between the successors of Anyaduba and Ibiola.

The next question is the effect of the above findings on the claim for title.

To start with, while I accept the above findings by the learned trial Judge, I believe it was a misconception for him to have said that there was no issue of title between the parties – the main ground upon which he opted for a non-suit. On a correct view of the cases of the parties, the plaintiffs are saying that the land in dispute was their father’s; that it was their father and predecessor-in-title who granted the kola tenancy to Madam Ibiola; that the grant was for her life and so they have now inherited the freehold reversion. The defendants are saying that what was sold to Madam Ibiola was an out-and-out grant; that Anyaduba’s interest was as a kola tenant of Mgbelekeke; that Anyaduba transferred his whole interest to Madam Ibiola, as per Exh. A and A1; that by Madam Ibiola’s will, Exh. G. she bequeathed the property in dispute to their predecessor-in-title; and that by the conveyance, Exh. E, dated the 20th of July, 1977, Mgbelekeke family (to them the rightful owners) conveyed the property to their predecessor-in title who in turn by a deed of lease, Exh. F, leased the property to them for 40 years with effect from the 1st of April, 1977. With these competing interests between the plaintiffs and the defendants, I find it difficult to agree with the learned trial Judge that no issue of title arises between the parties. A straight case of landlord and tenant, customary or otherwise, does not usually raise an issue of title. But what the defendants in this case are saying is, in sum, that the former customary landlord does no longer have a right to reversion because he himself had lost his right and they, defendants, have got a grant through the succeeding rightful owner and reversioner. The issue of title is, therefore very much alive.

What then should have been the conclusion of the learned trial Judge on the issue of title, upon proper consideration. Needless to say that the only proper conclusion must necessarily be one flowing naturally and logically from the above findings. No doubt, the right of the defendants depends directly on the establishment of the right of Mgbelekeke family on whose grant and interest they now rely. On the state of the pleadings it was for them to have joined the family if they were thought to be a necessary party for their case: for their case stands or falls on Mgbelekeke rights. But they did not join them. Be that as it may, the learned trial Judge after carefully examining the matter in some detail (see pages 41 to 43 of the record) positively held – and it has not been reversed:

“From the evidence before me, it appears and I so hold, that the Mgbelekeke family has not established any right of ownership in respect of the land in dispute.”

This finding has not been appealed against. He gave good reasons for his finding on the point. In addition, he rejected the claim of Mgbelekeke family through 3 D.W., Philip Akunwafor Obanye, that Anyaduba was the family kola tenant but forfeited it. He also found that Mgbelekeke family first started to show interest in the property in dispute when the plaintiffs who first mistakenly thought that the property was that of Mgbelekeke approached them on the matter in 1976. The learned Judge found this Mgbelekeke connection to be a mistake and held that on the plaintiff’s explanation they were not estopped from denying the title of Mgbelekeke.

What should have been the only correct inference of the learned trial Judge on the question of the competing titles of the plaintiffs and defendants If he did not – erroneously I hold – come to the unfortunate conclusion that no issue of title arose between them As to who should succeed, I shall be guided by the opinion at p. 35 where he stated:

“It ought to be borne in mind always that at common law, where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B, he (Party A) is entitled to succeed: per Lord Diplod in Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19 at 24-25 and cited in Anukanti v. Ekwonyeaso (1980) 1 L.R.N. 346 at 351.

By virtue of the provisions of section 14 of the High Court Law, Cap. 65, 1976 Laws of the Bendel State of Nigeria, Vol.111 p. 1670 the High Court of Bendel State is empowered to enforce this rule of the common law. I am satisfied that the respondent proved a better title than the appellant.”

On this principle, the non-joinder of Mgbelekeke cannot be a valid ground for denying the plaintiffs a relief to which they would have heen otherwise entitled, on the above findings. Their case did not depend on Mgbelekeke: it was for the defendant to have joined them, if they wished. In any case, it is a settled principle of law that non-joinder or misjoinder of parties will not be fatal to the proceedings. See on this J.F. Oladeinde & Anor v. I. O. Oduwole (1962) W.N.L.R. 41; also Order 4 rule 5 of the High Court Rules for Eastern Nigerian, 1963. But the court may order a retrial in appropriate cases; J.S. Ekpere & Ors. v. Aforije & Anor. (1972) 1 All N.L.R. (Pt.1) 220. On the case which plaintiffs brought to court, they did not rely on Mgbelekeke title: it was for the defendants who relied upon that to have joined them if they thought they were a necessary party. The Mgbelekeke people knew that the case was going on: one of their principal members gave evidence as D.W. 3. As they stood by and allowed the defendants to fight their fight for them, if they were interested, they would be bound by the above devastating findings against their interest, if any. From those findings, it follows that the learned trial Judge was right when he held that Exh. “E”, by which Mgbelekeke family conveyed the land in dispute to the defendant’s predecessor in title was null and void and that the disposition of the property by the Will of Madam Ibiola under Exh. “G” was also void. It follows also that the lease, Exh. “F” whereby the vendees in Exh. “E” leased the property in dispute to the defendants for forty years is also null and void. For, on the maxim; nemo dat quod non habet (nobody can give what he has not), if they got nothing by Exh. E they could not give what they purported to have got, but did not; they had nothing to give by Exh. “F”.

Therefore, to come to the conclusion as to whether the plaintiffs proved their title, I must consider the relative strengths of the cases of the two parties before the Court. To start with, on the defendant’s admission that its predecessor-in-title, Madam Ibiola, came upon the land in dispute upon a grant by the predecessor-in-title of the plaintiffs, Mr. B. O. Anyaduba, the defendants are prima facie estopped from denying the plaintiffs’ title. This estoppel could only have been removed if the defendant was able to show that the paramount interest had been transmitted to Mgbelekeke family. But, on the above findings it has been conclusively shown that that was not the case. So strong is this piece of evidence that Ibiola derived title from Anyaduba that from earliest times it had been held in several judgments that a customary tenant’s denial of his landlord’s title was a misconduct which was a ground for forfeiture. See – Oloto v. Dawodu (1904) 1 N.L.R. 57; Onisiwo v. Bamigboye (1941) 7 W.A.C.A. 69; Eletu & Ors. v. Omojewonniya & Ors. (1962) 2 All N.L.R. 13. On the other side of the balance is the fact that the title of the Mgbelekeke people from whom the defendants claim to have derived title to the property has been found not to have been established. Also Exhs. “E”, “F” and G” upon which the defendants have directly hoisted their title to the land in dispute were pronounced null and void by the learned trial Judge, and this finding was not reversed by the Court of Appeal. Whether or not the plaintiffs proved the title of and due purchase from the Sierra Leonean from whom B.O. Anyaduba said he bought was not, and could not be, an issue between the plaintiffs and the defendants who initially derived title from them. On a proper view of the case and bearing in mind the warning of Coker, J.S.C. in Akintola & Anor. v. Solano (1986) 2 N.W.L.R. (Pt. 24) 589 at p. 611 that-

“There is no concept which could be described as absolute title as between the parties.”

and that

“What the Court had to decide at the end of the trial is which of the parties on the preponderance of credible evidence was entitled to judgment. See Alhaji L.A. Onibudo & Ors. v. Alhaji W.A. Akibu & Ors.( 1982) 7 S.C. 60. 89.”

It appears clear to me that in the competing title between the plaintiffs and the defendant, the plaintiffs were entitled to a declaration of title. The correct approach was to have collected all the above findings which were in favour of the plaintiffs and put them on one side of an imaginary balance and those in favour of the defendants on the other and weigh them together: see Mogaji v. Odofin (1978) 4 S.C. 91. Whichever outweighed the other would have had the verdict. No doubt the plaintiff’s case is stronger. This takes care of issue Number one.

NON-SUIT

From the background of the above conclusion, I shall make a short cut of issue numbered 5 and 6. The first question is whether the need for the court to hear the parties before making an order of non-suit is desirable, or directory of mandatory. Counsel went into the trouble of analysing decided cases in order to find out what the views of the courts were in those cases – whether they decided that it was mandatory, directory or merely desirable. Such cases include: Mustapher S.B. Dawodu v. Sabinna Gomez (1947) 12 W.A.C.A. 151. Craig v. Craig (1967) N.M.L.R. 52. Robert Osayi v. Ogude Izozo (1969)1 All N.L.R.155 Oduola v. Coker (1981) 5 S.C.197.

In my opinion this analysis is unnecessary. This is because there can no longer arise in Nigeria the question whether parties to a suit are entitled to be heard on the propriety or otherwise of a non-suit before the order is made. It is true that parties no longer by themselves elect or ask that they be non-suited. They normally come to court to urge the court to enter judgment in their favour. As it is so, ordering a non-suit is in effect making an order which none of the parties has asked for. In a country like Nigeria where right to fair hearing is a constitutional right under section 33 of the Constitution, it would be unconstitutional as being contrary to the principle of fair hearing to make any substantive order which none of the parties in litigation has asked for, no matter how benevolent it might seem. I, therefore, agree that for failure to invite the parties to address the court on the propriety of a non-suit before ordering it, the appeal was rightly allowed.

But, having allowed the appeal, what order the court below ought to have made is a different kettle of fish. As it decided to make an order which the evidence and findings in the case deserved, it ought to have considered the above findings by the learned trial Judge which it did not reverse in the appeal. The Court of Appeal refused to confirm the order of non-suit on the ground that the plaintiffs did not apply, as required by section 5 of the Kola Tenancy Law of Eastern (Cap. 69 of 1963) for the extinction of the tenancy. It appears to me from the record that this point was raised suo motu by the court. It did not arise from the pleadings. Nor was it one of the six issues before the Court of Appeal as set out at page 82 of the record. Nor was it raised in the argument of ground 1 of the grounds of appeal. Above all, it is a question of fact whether or not a grantor of a kola tenancy did apply for its extinction under section 5(1) of the Law. As it is so, without its being made an issue, the court could have said nothing about it or used it as a reason for refusing to confirm an order of non-suit made by the learned trial Judge. The Court certainly made for the defendants a case they did not make for themselves: this it could not have done in our adversary system: See on this Chief Dokubo Akide Aseimo v. Chief Anthony Amos (1975) 2 S.C. 57, p.61; Abdul Hamid Ojo v. Primate E.G. Adejobi (1978) 3 S.C. 65, p.75. I am satisfied that if it limited itself to the issues properly before it and gave proper consideration to the above findings and drew the only logical inference from them, it should have found that the plaintiffs were entitled to a declaration of title in terms of their claim numbered one. Polycarp Ojogbue & Anor. v. Ajie Nnubie & Ors. (1972) 8 S.C. 227, p. 235.

Plaintiff s Second Declaration

The most striking feature of the judgment of the Court of Appeal is its treatment of plaintiffs’ second declaration, a matter which is raised in issue number 3 in this appeal. In the second claim before the High Court, the plaintiffs claimed for:

“(ii) A declaration that the receipt dated 28th day of March 1932 was not an instrument and did not transfer title in the land to late Madam Christiana Ibiola, and therefore no legal title passed to the executors, or to any person claiming through her or to the defendant.”

After hearing, granting this claim, the learned trial Judge held:

“Accordingly I find that Exh. ‘A’ was not meant to be an out and out sale of the land in dispute, but was a transaction under that form of native law and custom in Onitsha known as ‘kola tenancy.’ That being so the claim of the plaintiff that Exh. “A’ was not an instrument and did not transfer an absolute interest to Madam Christiana Ibiola succeeds.”

The Court of Appeal did not upsel this conclusion. If I may repeat the conclusion of Aikawa, J.C.A., he stated:-

“Instead I find that in view of the evidence adduced and the surrounding circumstances of this case, the kola tenancy between Madam Christiana Ibiola, and B.O. Anyaduba still exists and Exhibit A and A1 are agreement of the said kola tenancy transaction.”

It follows that the above conclusion of the learned trail Judge was not reversed. But almost immediately after this, he concluded:

“In the circumstances the appeal is allowed. I set aside the judgment of Awogu, J. dated 14/2/83 including order for costs and instead I enter judgment dismissing the claim of the Plaintiffs/Respondents. I award the Appellant N500.00 costs in the lower Court and N250.00 for this appeal”.

I am bound to ask: What happened to the second declaration which the learned trial Judge granted and which the learned Justice of the Court of Appeal also impliedly supported in his finding quoted above Can an appellate court reverse a lower court on a relief granted by the latter where it agrees with the lower court on the facts upon which the relief was granted What are the incidents of the customary kola tenancy which the learned Justice of Appeal found to be subsisting between B.O. Anyaduba and Madam Ibiola I shall now deal with these questions.

In my opinion, the only basis upon which an appellate court can interfere with a decision of a court of trial is a finding of error. Where the appellate court agrees with the court of trial on the facts, it can only interfere if it succeeds in showing that the trial court drew a wrong inference on the facts. In the instant case, as the Court of Appeal did not disagree with the trial court on the facts in this particular respect and did not show that it drew any wrong inference from the facts, it lacked the vires to interfere. It follows, therefore, that the finding of Awogu, J. (as he then was) on the second head of claim ought to be restored.

Kola Tenancy

I shall now consider the implications and incidents of the Kola Tenancy between Mr. B.O. Anyaduba and Madam Ibiola. The first implication of this finding, of course, is that the Mgbelekeke claim had been rejected by the Court of Appeal when it said that the kola tenancy between Anyaduba and Ibiola was still alive. So did the learned trial Judge when he held that Exhs. “E” and “F” were null and void. The initial question was whether Exh. A created a life interests which terminated with the death of Ibiola in 1957 or an inheritable estate which passed on to her successors-in-title. Now Exh. A runs thus:-

“This is to certify that I Benjamin Odiakosa Anyaduba of Onitsha have this day transferred to Madam Christiana Ibiola of Abeokuta now residing at Onitsha, the portion of my property situated at the junction of the New Market Road and Nottidge Street Onitsha Waterside as per plan attached coloured in red, on payment of the sum of One Hundred and Twenty pounds (120) sterling under kola system according to Native Law and Customs.

The said property or land is bounded on the South by the New Market Road measuring 86 feet in length, on the West by Nottidge Street measuring 56 feet in breadth, on the East by remainder of my property, measuring also 51 feet in breadth and on the North by Atuanya’s property measuring 84 feet in length.

The said property has a mat roofed house on it, all of which I have transferred to the absolute use of the said Christiana Ibiola herself. Dated at Onitsha this 28th day of March, 1932.

In the presence of Sgd. B. O. Anyaduba

the witnesses

(Sgd.) Mbanefo of U.A.C. Ltd.

Y.A.Oyekanmi”

Learned counsel for the appellant submitted that the words “under kola system according to native law and customs” and “to the absolute use of the said Christiana Ibiola herself” mean and could only mean that it was a life interest. It could be used by Ibiola only by herself i.e. during her life: this rules out the intention to create an inheritable estate. Learned counsel for the respondents. On the other hand, submitted that the words “absolute” and “transfer” imply that the transfer was without restriction. The learned trial Judge concluded from the wording of Exh. A as follows:-

“As stated earlier, it is my view that the plaintiffs did not divest themselves of all interest in 11, New Market Road, Onitsha, by virtue of Exh. A.”

proceeded to examine whether what it created in favour of Ibiola was life interest or one that survived Ibiola and could be passed on in her Will. He examined the definition of kola tenancy in section 2 of the Kola Tenancy Law (Cap.69) Laws of Eastern Nigeria, 1963 as well as judicial pronouncements as to the nature of a kola tenancy in such cases as – Okoye Oyidiobi v. Sarah Okechukwu (1972) 5 S.C. 191, 193 Udensi v. Udensi (1976) 7 S.C.1, pp. 15-16, and Daniel v. Daniel 1 F.S.C. 50, at p. 51 (1956) SCNLR 135, particularly the opinion of Foster – Sutton, F.C.J. where he stated in Daniel v. Daniel (supra):

“…… the one thing which the holder cannot do under customary law is absolute or entire alienation of the same.”

and concluded that the question “whether or not kola tenancy was inheritable was a matter for the lex situs of the property in dispute.” As there was no evidence of the customary law of the lex situs, and therefore, that Ibiola could dispose of the property, which was subject to a kola tenancy under her Will, her purported disposition of the same under her Will, Exh. G, was null and void. Exhibits “E” and “F” had also been pronounced invalid. See pages 47-49 of the record.

The learned Justices of the Court of Appeal in their judgment, which was rather short, did not go into the authorities relied upon or the reasoning of the learned trial Judge or try to show that, and if so how, he was in error. However they agreed that the kola tenancy between Anyaduba and Ibiola exists today. Then the Court made one startling statement where it stated:

“It is not in dispute that Madam Ibiola was in occupation of the property from 1932 to 1957 when she died and her successors inherited the interest in the property which they leased out to the Defendant Company.”

While it is true that Madam Ibiola was in occupation from 1932 to 1957, the plaintiffs are contesting the rest of the statement. And this reveals part of the faulty premise upon which the order of dismissal arose. However, on the above state of the decision of the Court of Appeal, particularly its failure to upset the finding of the learned trial Judge that there was no evidence that by the lex situs of the property in dispute to support that it was inheritable, that finding stands. As it is so, it follows that the defendants have failed to show that the property in dispute is inheritable.

This brings me to a consideration of the meaning of the expression “under kola system according to Native Law and Customs.” I must bear in mind the fact that, after all, Exh. “A” which evidenced the contract between the parties was a home – made document which was made in 1932, whereas the Kola Tenancy Ordinance, which later became the Kola Tenancy Law (Cap. 69) Laws of Eastern Nigeria 1963 was enacted in 1935. So, strictly, it is not right to construe Exh. A from the definition in the Law which came into effect subsequently. But bearing, in mind the facts that kola tenancy is, after all, like other customary tenancies and that all tenancies create the relationship of landlord and tenant, we can reach the meaning intended by the parties to Exh. A. All such customary tenancies vest in the tenant the right to use and occupy the land of the customary landlord: See Lewis v. Bankole (1908) 1 NLR 81, p. 105; Amodu Tijani v. Secretary of Southern Nigeria (1915-21) 3 NLR 24; P.c. and Ita v. Asido (1935) 2 WACA 339. Once it is recognised that the kola system is like any other customary tenancy, we shall bear in mind the opinion of de Comarmond, S.P.J. in Onisiwo v. Fagbenro (1954) 21 NLR 3, at p.5 where he stated it to be as settled rule of customary law that-

“…..the rights of the customary tenant under native law and custom are limited to occupation during good behaviour (and) do not include the right to alienate without the consent of the family.”

The definition in section 2 of the Kola Tenancy Law also limits the rights of the ‘Kola tenant to those of use and occupation. More relevantly to kola form of customary tenancy, this Court in Udensi v. Udensi (1976) 7 S.C. 1, which was relied upon by the learned trial Judge stated:

“……the position is that once it is admitted that that property (or a parcel of land) is held under a kola tenancy, the one thing which the holder cannot do under customary law is absolute or entire alienation of the same. (see also Foster-Sutton, F.C.J. in Daniel v. Daniel, 1 F.S.C. 50 at 51 (1956) SCNLR 135). There is, however, the other question whether the nature of interest conferred on a kola tenant is an ‘interest of inheritance.’ Being an interest in a customary tenancy, the question whether such interest is inheritable and in what particular way or by which particular person must depend on the particular custom governing the kola tenancy; and this generally is a matter of evidence……… It is, therefore, difficult to say that, eo ipso, a customary tenancy is an interest of inheritance.”

So, generally lack of power to alienate is of the very essence of a customary tenancy or right of occupancy by a customary tenant. Any alienation by such a customary tenant is null and void (Erikitola v. Alii; (1941) 16 NLR 56; Oshodi v. Oloje (1958) L.L.R.I) except the tenant is able to show that alienation is permitted by the customary law of the particular community. By the evidence of 2 P.W., Chief Isaac Mbanefo, the Odu of Onitsha the right of transfer without consent is limited to the house on the land, the subject of the tenancy, and does not extend to the land. The learned trial Judge was, therefore right when he held that Exhs. “E”, “F” and “G” which purported to transfer the land without the plaintiffs’ consent were null and void. It appears to me, too, that the expression “to the absolute use of the said Christiana Ibiola herself were designed to emphasize Madam Ibiola’s right to use and occupy the land herself and the exclusion of the right to alienate the same. Indeed with the findings that Mgbelekeke interest was not established and that the customary tenancy between Anyaduba and Ibiola continued any other interpretation of Exh. A will leave the defendants, who claim through Ibiola, as it were, customary tenants without a customary landlord. This cannot be right, on the principles I have examined above. The dismissal of the plaintiffs’ claim as the Court of Appeal has done will have precisely the same effect. Adverting more directly to the claim for a declaration of title, it must be noted that in all customary tenancies whereas the customary tenant retains, until forfeiture, the right to use and enjoyment of the land (Akinkuowo v. Fafimoju) (1965) NMLR 349) or of the grantor not derogating from the subject of the grant (Etim v. Eke (1941) 16 NLR 43), save to such an extent as has expressly been made a term of the grant, the customary landlord retains his title which is often in form of a contingent or reversionary title. But it is title all the same. He also retains the right that the customary tenant shall not deny his title, or alienate his interest without his consent or use the land for a purpose different from that for which it was granted, and to receive such tributes or rents as had been agreed between the parties. The finding that the kola tenancy between Anyaduba and Ibiola continues carries with it all these implications.

If Mr. Ben Anyaduba (deceased) were alive today, there could have been no question of his being able to bring the present action against Madam Ibiola. As he is dead, the action was rightly brought by and on behalf of his children. The court can take notice of the fact that on his death, his property became his family property, to be shared by his children (and other dependents, if any) according to custom. As we have no evidence of any (other dependent of his) it is my view that the action was rightly brought by and on behalf of his children. For it is trite that members of a family can always institute an action for the protection of the family property.

In the recent case of Michael Romaine v. Christopher Romaine: S.C. 96/1990 of the 22nd of May, 1992, now reported in (1992) 4 NWLR (Pt.238) 650, an issue as to the Customary Law of succession to a landed property in Onitsha as between persons who claim from the same source arose. The circumstances of this case as between the plaintiffs and defendant are different. But what is important and this is in accord with the evidence of Chief Isaac Mbanefo in this case – is that whether or not such a property could be inherited upon death on intestacy is a matter of evidence as to the customary law of the lex situs. As this point was not investigated by the courts below, and there is no claim for forfeiture, I am of the view that it will not meet the ends of justice if the plaintiffs are granted a declaration of title in terms of their first head of claim. I shall, however, grant them a more limited declaration, to be set out below.

The learned trial Judge refused to grant to the plaintiffs damages for trespass and an order of injunction. There was no cross-appeal against that part of the decision to the Court of Appeal. As the Court of Appeal did not adjudicate on it, it follows that there can be no appeal on that to this Court.

Following from what I have stated above the appeal succeeds in part and is allowed with respect to the first two heads of claim.

(i) I hereby declare that the plaintiffs are the customary landlords according to Onitsha kola tenancy system of that piece or parcel of land in the junction between Nottidge Street, Onitsha, and New Market Road, Onitsha, otherwise known as No. 11 New Market Road, Onitsha.

(ii) I also grant to them a declaration that the document dated 28th day of March, 1932, which was tendered at the hearing as Exh. A in this suit was not an instrument and did not transfer title to late Madam Christiana Ibiola but created a kola tenancy from late B.O. Anyaduba in Madam Ibiola’s favour.

(iii) Claims for damages for trespass and injunction remain dismissed.

As both sides have succeeded in part, I make no order as to costs.

Appeal dismissed,

Cross-appeal allowed in part.

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SC.103/88