Lawani Ajeigbe V. Mr. Odedina & Ors. (1988)
LawGlobal-Hub Lead Judgment Report
Parties
LAWANI AJEIGBE Appellant(s)
AND
- MR. ODEDINA
2. ALHAJI ADEWALE
3. ALHAJI RAMONI
4. LASIBI AKINRINOYE
5. MR. T. A. ADEYEMO
6. SALAMI DALEGAM
7. MR. B. A. OLADEPO
8. TIAMIYU DALEGAM
9. ARASI ELERO
10. AMUSA TITILOPE
11. OLANIHIM AGBEKE
12. MR. SUARA
13. MR. AKINLEYE
14. MADAM SINOTU ADETUTU
15. TIAMIYU AYOOLA
16. ADENIKE ALIMOTU
17. ALIU ISHOLA
18. MR. OLANIRAN
19. MR. Y. A. FOLAYEMI KEHINDE
20. MR. RAIFU
21. MR. M. ARIYO
22. ALHAJI MOSOBAINJE
23. AMODU ODUOLA SALAMI
24. MR. M. A. ADESHINA
25. TUBOSUN KAYODE
26. ALHAJI LAYIWOLA AJADI
27. LATEEFU IYANDA
28. BUSARI AREMU
29. SUMONU LADEPO
30. TIAMIYU
31. LATEEFU LAWAL
32. MR. A. BELLO
33. MR. YEKINU
34. LAWANI KOLAWOLE
35. BUKUAMINU SANUSI – Respondent(s)
NNAMANI, J.S.C.
In this suit commenced at the High Court, Ibadan, the Plaintiff/Appellant claimed against all the Defendants/Respondents as follows:-
“The Plaintiffs’ claims against the Defendants is for possession of the Plaintiffs land situate, lying and being at Ogo’s Compound, Ojagbo, Ibadan. Annual value is N20.00 (twenty naira)”
Pleadings were ordered, duly filed and exchanged. At the trial 4 witnesses testified for the Plaintiff and many of the defendants gave evidence. It is pertinent to mention, as both lower courts did mention, that there were 3 sets of defendants to this suit the 6th, 8th, 14th, and 17th Defendants, the 3rd, 4th, 6th, 7th, 18th, 21st, 24th, 25th, 27th, 28th, 29th, 30th and 35th Defendants; and 2nd, 5th, 9th, 10th, 11th, 12th, 13th, 15th, 19th, 20th, 22nd, 23rd, 26th, 31st, 32nd, 33rd and 34th.
The third group of defendants were represented by counsel and it is infact in respect of their case that appeals were taken to the Court of Appeal and to this Court. The learned trial Judge in the High Court, Ayoola, J. painstakingly reviewed the case of the parties before arriving at his decision. He noted that the defence of the defendants who were not represented by counsel was that the land belonged to Ojo Dalegun originally, that the Plaintiffs by their conduct in a Suit No. 36/60 Bello Adelakin v. Buraimoh Abiodun Dalegun have acquiesced in the title of the family of Late Ojo Dalegun in the land in dispute. They claimed that they built their respective houses on the land long before the inception of Suit No. 1/33A/64 to which reference will be made later. He also noted that the defence of the defendants represented by counsel was that they were not aware of the dispute in 1/33A/64; that they bought their respective plots of land between 1953 and 1958 and that the Plaintiff and members of his family are guilty of laches, acquiescence, standing by and stale claim. On the other hand, the Plaintiffs case consisted mainly of previous judgments, on the land in favour of plaintiff Lawani Ajaigbe including 1/33A/64 (Exhibits B and C). Plaintiff contended that he had established title to the land in dispute and that the Court was bound to grant him possession. The Plaintiff claimed that the judgment in 1/33A/64 is binding on the defendants and that they are estopped from challenging his title. His case was that the defendants bought the land and built their houses on the land during the pendency of that suit. After reviewing the evidence led by the parties before him, and dealing with the authorities on the issue of onus of proof, the case being one of possession, the learned trial Judge arrived at some conclusions of fact which were bound to pursue the appellant through the Court of Appeal to this Court.
He said:-
“I am particularly impressed by the evidence of the defendants who have given evidence and of the evidence of the 1st defence witness. I believe their evidence that they bought their respective plots between 1953 and 1959. Quite independently of the evidence as to time they built their respective houses, even if I had not believed their evidence as to the time they built their respective houses or if I had some doubt as to that aspect of their evidence would not have affected the credibility I ascribe to their evidence as to the time of purchase of their respective plots. Their evidence on that point was unshaken in cross examination.
Furthermore, as shown by the evidence of the 5th Plaintiff witness at least one person had been shown to have purchased a plot in the area even without developing it. When one comes to the question of binding effect of judgment one considers time of purchase and not time of development of the property purchased. I find on the evidence before me that the 2nd, 5th, 9th, 10th, 11th, 12th, 13th, 15th, 19th, 20th, 22nd, 23rd, 26th, 31st-34th defendants bought their respective plots in the years stated earlier in this judgment (i.e. between 1955 – 1959).
As regards them even if the onus is on them as to proving that they bought their respective plots before the institution of the action (Suit 1/33A/64) against Dalegan, I hold that they have discharged that onus. In the result, the judgment in Suit 1/33A/64 has no conclusive probative value as against them. In short, they are not bound by the judgment … But these defendants represented by counsel rest their defence on an alternative pillar.
They raised by their pleadings equitable defences of laches, acquiescence and stale claim. On the evidence it cannot be disputed that these defendants have built on the land. I have no doubt that the Plaintiff and members of his family knew when these buildings were being erected on the land and did nothing about them”
The learned trial Judge having dismissed the claim against this set of defendants, the plaintiff appealed to the Court of Appeal. That Court (Omo, Onu and Sulu Gambari, JJ.C.A.) dismissed the appeal. Sulu Gambari, J.C.A. concluded his judgment in a way which must make the journey of the Appellant in this Court Hazardous. Said the learned Justice-
“It is my view that unless the appellant can establish that the learned trial Judge did not take proper advantage of his having seen and heard the witnesses, did not properly appraise and evaluate all the evidence before him and did not come to the correct and satisfactory conclusion from the available evidence, I do not see how his findings could be disturbed by this Court.”
The appellant has now appealed to this Court on 5 grounds of appeal which I do not consider ought to be set down here. I may refer to one or two of them later in this judgment.
As to the issues for determination, I am of the view that the formulation by learned counsel to the respondents in his brief appears to bring out the issues more poignantly. In his own view they are:-
“(a) Whether the respondents are bound by Exhibit B – (i.e. Suit 1/33A/64) a judgment obtained against Ojo Dalegan long after they had purchased the land so as to entitle the appellant to possession of the land in dispute.
(b) Whether the appellant discharged the onus of proof on him in the circumstances.
(c) Whether the refusal of the Justices of Appeal to interfere with the learned trial Judge’s exercise of discretion in refusing plaintiff’s application to call rebutting evidence occasioned miscarriage of justice to warrant a retrial”
Because of the nature of the appellant’s counsel’s submission in his brief of argument and in this Court, perhaps I ought to set down his first issue for determination. This according to him is-
“Whether the learned Justices of the Court of Appeal erred in not reversing the decision of the trial Court on the issue of burden of proof for his failure to construe the document Exhibit B, when it is against the Respondent’s vendor, as evidence on which Plaintiff could rely upon as evidence of possession and better right to possession.”
I deem it necessary to start by stressing that the learned trial Judge seemed to have made findings of fact affirmed by the Court of Appeal, which have touched on the main issues to be determined in this appeal. To the extent that the appellant has been unable to show any failure on the part of the learned trial Judge to properly evaluate the evidence before him, the Court of Appeal could not, and this Court will not, disturb those findings either. See the decisions of this Court in Njoku v Erne (1973) 5 S.C. 293; Chikwendu v. Mbamali (1980) 3/4 S.C. 31; Ibodo v. Enarofia (1980) 5 & 7 S.C. 42; Enang v. Adu (1981) 11-12 S.C. 25; Otogbolu v. Oke Inwa (1981) 6-7 S.C. 99; and the more recent cases of Overseas Construction Ltd. v. Creek Ent. Ltd (1985) 3 N.W.L.R. part 13 407 at 413 – 414; Ajadi v. Okenihun (1985) 1 NWLR Part 3 484, 489; Lokoyi v. Olojo (1983) 2 S.C. NLR 127 at 132 In re Mogaji (1986) 1 N.W.L.R. part 19 759 772; It is against this background that one must examine the issues that I have set down above. It is clear that the entire case of the plaintiff revolved around Suit 1/33A/64, tendered in the proceedings as Exhibit B. In paragraphs 4 and 6 of his Amended Statement of Claim, the plaintiff/appellant pleaded as follows:-
“4. The land in dispute was on 27/11/73 in Suit No. 1/33A/64 Between Lawani Ajaigbe and Buraimoh Ojo Dalegan and others declared the property of the Plaintiff……………..
During the pendency of the Suit referred to in paragraph 4 above, Buraimoh Ojo Dalegan, the 1st Defendant in Suit 1/33A/64 sold portions of the land in dispute to each of the defendants”
There was no reference to Ojo Dalegan, the ancestor of Buraimoh in these pleadings.
The heading of Suit 1/33A/64 was,
LAWANI AJAIGBE ………. Plaintiff
v.
- Buraimo Ojo Dalegan)
- Adetutu Laditi )
- Aliu Ishola )….. Defendants
- Raufu Ile Ladunni )
- Tijani Ladeji )
The suit which was for declaration of title under native law and custom to a piece of land situate at Ogo’s Compound Oja-Igbo Ibadan was against the defendants as per the writ. The respondents’ reply to the two paragraphs of the Amended Statement of claim is contained in paragraphs 4,5,6,7 and 8 of the Further Amended Statement of Defence. They were as follows:-
“4. The defendants will contend in respect of paragraph 4 of the statement of claim that they were not aware of the dispute in Suit No. 1/33A/64 between Lawani Ajeigbe and Buraimo Ojo Dalegan and others until after the judgment in that case had been delivered.
- The defendants aver that they bought their respective plots of land from the family of the late Ojo Dalegan to whom the land originally belonged as a result of a grant which he obtained from Limo family over one hundred years ago since when he had continuously exercised various acts of ownership on the land until portions of it were sold to the defendants.
- The defendants aver that at the time they purchased their respective plots of land between 1953 and 1958, they were not aware of any dispute on the land.
- The defendants further aver that they had already bought their respective plots of land long before the inception of Suit No. 1/33A/64 and have built houses thereon long before the commencement of the suit.
- The defendants state further that the plaintiff and members of his family were aware of the purchase and the developments made by them on the land and they took no steps whatsoever to let them know of any claim by them neither were they warned as alleged in paragraph 7 of the Amended Statement of Claim or at all.”
These then were the issues that went to trial. At the conclusion of evidence, the learned trial Judge arrived at the conclusions earlier set down in extenso. At the risk of repetition these were:-
(1) That the respondents bought their Respective plots between 1953 – 1958 long before the inception of Suit 1/33A/64.
(2) That the respondents had built their houses on their respective plots long before the inception of Suit 1/33A/64
(3) That the appellant and his family were aware of these buildings but did nothing about it.
(4) That Suit 1/33A/64, Exhibit B, was not binding on the Respondents.
As earlier indicated, these findings, which were the result of a careful appraisal of the evidence before him by the learned trial Judge were affirmed by the Court of Appeal. There is nothing that has been submitted to this Court that will justify any interference. The effect of this is that while Exhibit “B” no doubt’ formed the root of title of the Plaintiff/Appellant, it could only bind the 1st Defendant and the other defendants against whom the appellant succeeded in the High Court. It could not affect land which the respondents had purchased from Ojo Oalegan’s family years before 1964 when the suit in Exhibit B was instituted.
It has long been settled that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase. This principle of law arose from the decision of Romer, J. in Merchantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co. (1894) 1 CH.D. 578, 595. The learned Justice said-
“But then it is said that the English Company is bound, as being “privies in estate” of the American Company, the estate being the land in Mexico purporting to have been charged in favour of the debenture holders. But it is not in dispute that throughout that action the debenture – holders had no charge on the land valid or binding according to the law of Mexico
……………… Nothing was decided in that action which in any way bind the land and I cannot see how the English Company even if they could be regarded as having acquired the land subsequent to the judgment, can be said to be estopped, as purchasers of that land by a judgment in no way binding on the land. Moreover, if the claim of the Plaintiff company could be regarded as one affecting the land notwithstanding that no registration of that claim had been made in Mexico, which alone could validly bind the land there, then the English Company would be entitled to say that they were purchasers of the land prior to that action notwithstanding that their title may not have been perfected by registration.”
This judgment was approved by this Court in Ogundiani v. Araba (1978) 6 and 7 S.C. 55 at 84.
The respondents were neither parties to Suit No.1/33A/64 nor were they privy in estate with the parties therein, the land having been bought from Ojo Dalegan’s family. Learned Senior Advocate for the Appellant, Mr. Sogbesan, submitted that while the dictum of Romer, J. was approved by this Court, the principle enunciated there can only apply where the vendor’s title is sound. He was of course relying on the passage in the judgment of this Court in Ogundiani’s case(supra). Idigbe, J.S.C. of blessed memory, at p.86 of the record said-
“Where, therefore, as here, there has been merely a colourable or purported transfer of legal estate or, where, as here, the purchaser got only a questionable legal (and it must be remembered that we have earlier on made it clear that on the doctrine of lis pendens, Ogundiani did not get legal estate) there is no room for the application of the much respected dictum of Romer, J. in Mercantile Investments Co. (Supra) so as to oust the application of the doctrine of estoppel by “standing by.” Until the transfer of the legal estate is, in fact complete and lawful, the purchaser must be affected by a decision bearing on the title of his vendor notwithstanding that the decision was given in an action commenced after the purported or colourable transfer by the vendor to the purchaser of the legal estate.”
The authoritative espousal of the law does not, however, apply in the instant case. From the findings of the two lower courts, the transfer to the respondents appears to have been complete long before 1964. The case of the appellant was that the respondents bought from the 1st Defendant, Buraima Dalegan, during the pendency of Suit 1/33A/64. If this were so, an the principles of law pertaining to land acquired pendente lite, the respondents would have acquired no title from their vendor. This contention was rejected by the two lower courts, and there is nothing to justify my earning to a different conclusion. Besides, the case of the respondents, which the two lower courts appear to have accepted, is that they bought their respective plots from Oja Delegan’s family not from Buraima Dalegan who was a party to Suit 1/33A/64. Learned Senior Advocate then submitted that even if the judgment in Suit 1/33A/64, Exhibit B, does not bind the respondents and so cannot be used as estoppels against them, it ought to have been considered as an act of possession. He referred to Talabi v. Adeseye (1972) 9 S.C. 20 at 42. In that case the plaintiff had, among other reliefs, claimed the sum of #400 as special and general damages far trespass committed by the defendant an a piece .of land at plot 70, Durojaiye Street, Hire, Mushin. She also claimed possession. In her pleadings she not only relied an a conveyance dated 25th June, 1966 and registered as Na. 18 at page 18 in Valume 920 of the Lands Registry at Ibadan, but also an a judgment of the Supreme Court SC/293/64 Lasisi Layeni Onitire of Itire v. Ashimowu Durojaiye. The defendant only pleaded title through James Adeoye Daniel who himself obtained in 1955 a conveyance of the land from one Ashimowu Durojaiye Ajiya. The defendant specifically pleaded that he was not bound by the compromise judgment in SC/293/62 because at the time he bought from James Adeoye Daniel he had no knowledge of that judgment. The Supreme Court, on the authority of Mercantile Investment Case (Supra), upheld the defendants contention. The Supreme Court nevertheless dismissed the defendants appeal because on the evidence accepted by the lower court, the plaintiff relied on the radical title of the Onitire family. Coker, J.S.C. concluded there,
“We think therefore that on the whole case the defendant had failed to discharge the onus which the law placed on him after the plaintiff had discharged her own onus.”
With respect, I don’t think that the appellant can rely on the case. As in that case, in the instant case the respondents were not bound by the judgment Exhibit B. Unlike in the Talabi case, it cannot be said that the appellant had discharged the onus which was cast an him to prove a better title or a better right to possession once Exhibit B. on which he based his title was not conclusive on the issue. It is also significant that in the instant case the appellant neither pleaded nor led evidence of prior possession. There was, therefore, nothing on which one can, going beyond the principle in Mercantile Investment case, give judgment to the appellant. Finally, on this point, the judgment Exhibit B cannot be regarded as an act of possession against the respondents for they were not parties to it. This is clearly different from the situation in which the judgment in Ndukwe Okafor and Ors v. Agwu Obiwo and Anor (1978) 9 & 10 S.C. 115 at 122, though not binding on one of the parties in that Suit, was nevertheless used to establish long possession. Appellant’s counsel in his brief of argument complained too that the two lowering to hold that the learned trial Judge’s refusal to permit appellant to call or adduce rebutting evidence was not a proper exercise of judicial discretion and in proceeding to look into and consider the content of the said documents in relation to the application.
PARTICULARS
(i) When leave to adduce evidence in rebuttal ought to have been granted having regard to all the circumstances of the case.
(ii) When the trial Court did not refuse the application on the ground that the evidence if received will be worthless.”
The application to call fresh evidence in rebuttal was brought under Order 26, Rule 22 of the High Court (Civil Proceedings) Rules of Oyo State which provides as follows:-
“If a party opposed to the party beginning calls or leads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of Court, call fresh evidence in reply to the evidence given by the other side on points material to the determination of the issues or any of them but not on collateral matters”
The rebuttal evidence sought to be led related to the existence of the house of Buraimo Dalegan on the land in dispute as at the time the defendants/respondents were said to be buying land from Buraimoh Dalegan. Counsel had in the trial Court contended that it arose from the cross-examination of the defendants. It was intended to rebut the evidence of the defendants that at the time they bought their land Ojo Dalegan was living in his house in the land in dispute. The rebutting evidence was a plan prepared by the defendants vendor in 1962.
As had been shown in the pleadings, the respondents had contended that they bought their land between 1955 and 1958 and that they built and lived on the land from then. Appellant’s counsel had contended before the Court of Appeal that, if the evidence sought to be adduced had been received by the learned trial Judge, it would have conclusively shown that the respondent’s evidence was false, forcing the learned trial Judge to the only possible conclusion that the houses claimed to have been built by the respondents long before were in fact built during the pendency of Suit 1/33A/64.
The plan in issue No. 1/62 of 27/3/62 was admitted in evidence in Suit 1/33A/64 in which Buraimoh Dalegan was 1st Defendant and infact was tendered by him. Also in issue were the evidence of Buraimoh Dalegan and his brother Tiamiyu Dalegan in Suit 1/33A/64 and Plan No. Ab/1155B also tendered by Biraimoh in Suit 1/33A/64. The Court of Appeal, after due references to Agunbiade v. Sasegbon (1968) N.M.L.R. 223 and Ariku & Anor v. Ajiwogbo (1962) 1 All N.L.R. Pt.4 630 relied on by the appellant therein, held that the learned trial Judge exercised his discretion in refusing the rebuttal evidence correctly. Sulu Gambari, J.C.A. observed –
“It is crystal clear that a witness cannot be told of what a third person said or swore to and be asked if he contradicts same. Any person so asked may simply reply in my view that he was not present when the other person made such statement and since he could not have been afforded an opportunity to cross-examine from Dalegan family. It would be unjust in my view to so construe Section 20(3)(a) and (b) of the Evidence Act as to bind a whole family with the statements made or documents tendered by an individual in a Suit in which he was sued as an individual and not as a representative of the family. In Okafor and Ors v. Obiwo and Ors (supra) Idigbe, J.S.C. when faced with a similar situation observed,
“Something more has to be proved to (i) either identify the appellant’s community with Exhibit B or (2) show that they qua a community know or ought to know of the proceedings in Exhibit, B, and that notwithstanding they stood by while the dispute ‘raged’ in the Courts between the parties thereto. The fact that a member of a community took part in a court action either as a party or a witness is not by itself enough ground for the conclusion that the community to which the member belongs should be identified with that court action”
In the instant case, the lower courts accepted the testimony of the respondents that they bought land from Dalegan family. Dalegan family was not bound by the judgment in 1/33A/64, nor can purchasers from them before that suit be bound.
It is also clear that the plaintiff/appellant was not taken by surprise as to justify the taking of rebuttal evidence. As found by the two lower courts, the main issue in the suit has always been that while the respondents claimed to have bought their land from Dalegan family between 1955 and 1958, long before the inception of Suit 1/33A/64, the appellant claimed that this was false and that they bought and built during the pendency of Suit 1/33A/64.
The Respondents in their further Amended Statement of Defence, paragraphs 5 and 6, pleaded what had been stated above. As the learned trial Judge observed, the appellant, well aware of this plea, gave anticipatory evidence. I agree with him that it would have amounted to an injustice to have allowed rebuttal evidence. If a matter as to when Ojo Dalegan built his house, or where he was when land was sold to Respondents arose in cross-examination, such matter will go to no issue as it was never raised in the pleadings by either side. It follows that I think the two lower courts were right in not allowing rebuttal evidence.
There was in my view no miscarriage of justice. The question of a retrial, therefore, does not arise. It remains only for me to mention that the issue of laches and acquiescence was raised by the respondents in their pleadings in the alternative. It had to be, for I do agree with learned Senior Advocate Mr. Sogbesan that it would be contradictory to hold the two defences raised by the respondents as going together. The defence of laches etc. would arise if the appellant had established his root of title against the respondents.
In this case, he did not. The learned trial Judge found that the plaintiff and his family knew when the respondents were building their houses on the land in dispute but did nothing. This is not now important since I have, as found by the two lower courts, agreed that Suit 1/33A/64 on which appellant based his title was not binding on the respondents who had purchased their land before the suit was commenced.
For all the foregoing reasons, this appeal has failed, and I accordingly dismiss it. The judgments of the High Court of Justice, Ibadan dated 14/7/82 and the Court of Appeal, Ibadan Judicial Division dated 28th October, 1985 are hereby affirmed. There will be costs assessed at N500 in favour of the respondents.
SC.182/1986
