John C. Anyaduba & Anor Vs 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 lbiola, 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 A 1 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 apologised 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 lbiola, 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 transfered all his interest in the land in dispute to Madam lbiola (who was also known as Madam Christiana lbiolanigbe Oyekanmi) through Exhibit A 1 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 lbiola 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 tide 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 lbiola succeeds.’
(b) that it was not meant to give a life interest only to Madam lbiola 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 lbiola 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 Al
(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 A 1 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. UBA. 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 Al 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’ ‘Al’ 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 Al 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 ‘Al’ is the basis for such kola tenancy.
(c) They finally reache
Other Citation: (1992) LCN/2524(SC)
