Oke-bola & Ors V. Molake (1975)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C.

In this appeal, certain submissions were made which impel us to re-state generally the rules governing pleadings to which this court had in several appeals drawn attention as guidelines.

It is a settled principle, that where a trial is conducted on the basis of pleadings, a judgment of the trial court shall be based on issues raised or joined in such pleadings. Legal evidence given, which is not referable to the pleadings should not be admitted because it goes to no issue, and where admitted inadvertently, should be ignored and expunged from the record for the purpose of making findings of fact.

Along with this settled principle is that which affects a rival party who has admitted the ownership by the other party of a property claimed; effect should be given to such admission not only in regard to the admitted fact but also its legal consequences; as in this case, the burden of proof shifts from one party to the other. The formulation of issue by a trial court, not based on the pleadings filed by parties in a case, may invalidate a judgment, because it was based on issues, which either party in the case did not raise in their pleadings, but for which they require a judicial decision.

The appellants, the Aladun and Osumba families, were the plaintiffs, and the respondent, the defendant, in Suit IK/135/69 tried in the High Court of Lagos State. They will be referred to as plaintiffs and defendant in this judgment.

The claims of the plaintiffs are for (a) declaration of title to a piece of land, (b) damages for trespass, and (c) injunction. In his judgment delivered on 15th March, 1974, the learned trial Judge dismissed the plaintiffs’ claim. In the penultimate paragraph of his judgment, the learned trial Judge said:-

“In this respect I accept in all essential details the evidence given by the defendant and his witnesses on the totality of the evidence. I must hold that the plaintiffs have not proved any item of their claim and the whole case must be dismissed.”

The plaintiffs being dissatisfied with the judgment have appealed to this court and these are the grounds of appeal argued before us:-

“1.  The learned trial Judge misdirected himself in law in holding as follows:-

“In my view strong evidence should have been led by the plaintiffs to rebut the averment that the persons named in the Mortgage Deed quoted in paragraph 5 of the statement of defence quoted above were not predecessors in title of the plaintiffs. The fact that they were referred to as native authorities, in my view, is of no importance. The onus which rests on the plaintiffs to disprove this important point made in paragraph 5 of the Statement of Defence has not been discharged and this is fatal to the case of the plaintiffs.”

Particulars of Misdirection

By  the rules in force in the High Court the onus is on the defendant to prove facts averred in the Statement of Defence and there is no obligation on a plaintiff to disprove the said facts. Accordingly, absence of evidence regarding such facts cannot possibly be fatal to the case of the plaintiffs.

“2.  The learned trial Judge misdirected himself in law and on the fact in holding as follows:-
Quite apart from the documents……………. there is ample evidence of acts of ownership by the defendant and his ancestors as well as the predecessors in title up to the time of this action. I am satisfied from the evidence that the defendants by the exhibits tendered and by all evidence has established long and exclusive possession of the land in dispute that he is the exclusive owner of the property now in dispute. The land in my view no longer belongs to the family of the plaintiffs.

Particulars of Misdirection

(i)  The learned trial Judge overlooked the fact that the allegation in  the Statement of Defence was that Jinadu Molake was no more than a Mortgagee of the land in dispute up to the time of his death and that it was not until November, 1955 that the Administrators of the Estate of Jinadu Molake became owners of ” the area of the land in dispute and other farm lands” (see paragraphs 13 and 14 of the Statement of Defence).

(ii)  The plaintiffs having established their title to the land in dispute, the onus is upon the defendant to show that his own possession is of such a nature as to defeat the title of the plaintiffs and their right to possession.

(iii)  The learned trial Judge over-looked the fact that there was no allegation that Jinadu Molake ever went into possession as mortgagee or otherwise.

(iv)  The learned trial Judge failed to observe that although the defendant alleged that he went into possession of the land in dispute in 1943 he did not plead or testify in what capacity he allegedly went into possession.

3.    The learned trial Judge erred in law and on the facts in holding as follows:-

“Exhibit 7 the judgment in the interpleader summons clearly shows the effort made by the plaintiffs’ ancestors to put up a claim in respect of the land therein in dispute; and the finding was against the plaintiffs’ ancestors.”

Particulars of Error

(i)    There is no proof that any of the parties to Exhibit 7 were “the plaintiffs’ ancestors”.

(ii)   The said Exhibit 7 was in fact, on the face thereof, a dispute between the late L. A. Cardoso and one Odu Family.

4.     The learned trial Judge erred in law in failing to observe that the defendant has failed to prove that he or Jinadu Molake had any right,  title or interest in the land in dispute.

5.     The learned trial Judge erred in law in dismissing the plaintiffs’ claim when all facts capable of supporting the reliefs claimed were duly established.

6.     Judgment is against the weight of evidence.

On the pleadings the defendant admits the ownership of the plaintiffs of the land in dispute. On that admission, Chief F.R.A. Williams, learned counsel for the plaintiffs contended, that once the title of the plaintiffs has been admitted by the defendant, the law is that the onus shifts on the defendant to prove that his possession is lawful.

Learned counsel then referred us to the case of Akinlolu Oloto etc v. Administrator General and Ors 12 WACA page 76 where the court held:-

“Only clear authority would dispose this court to believe that native customary law is so unreasonable as to require the owner to disprove the case for the person in possession without first having notice of what that case consists. We have no doubt that in this case the onus of proving the right to possession was on the defendants.”

It may be convenient to state here that this point was raised by the learned counsel for the plaintiff, Mr. Ogunsiji, in the lower court, as embodied in the judgment of the learned trial Judge thus:-

“Mr. Ogunsiji counsel for the plaintiffs made a number of submissions which could be summarized as follows:

‘that the defendant having admitted by paragraph 2 of the Statement of Defence that plaintiffs are lawful owners, the onus of proof is on the defendant to prove that he has acquired the absolute interest of the plaintiffs in the land in dispute’.”

The learned trial Judge without a reply to that point by the defendant stated in his judgment thus:-

“By the Statement of Defence in paragraph 2 on (of) defence the defendant admits paragraphs 1, 2, 3, 7 & 14 of the Statement of Claim. This means that the defendant admits the original interest of the plaintiffs’ family, the locality of land, the dimensions of the land in dispute, and the fact that the land was a communal land under the control and management of both Aladun and Osunmba families. However paragraph 5 of the Statement of Defence which I quote hereunder is very important.

5.  Under and by virtue of the Deed of Mortgage dated 25th June, 1921 as registered as No.7 at page 53 in volume 153 of the Register of Deeds in the Land Registry, Lagos; the said land was mortgaged by the persons named therein who were predecessors of the plaintiffs to one Lawrence Anthonio Cardoso in their capacity (and) as the Native Authorities of Imore Town and as such the representatives of Imore Community for valuable consideration.’

In my view strong evidence should have been led by the plaintiffs to rebut the averment that the person named in the Mortgage Deed quoted in paragraph 5 of the Statement of Defence quoted above were not predecessors in title of the plaintiffs.

The fact that they were referred to as Native Authorities, in my view is of no importance. The onus which rests on the plaintiffs to disprove this important point made in paragraph 5 of the Statement of Defence has not been discharged and this is fatal to the case of the plaintiffs.”

This strange and indeed novel proposition of the learned trial Judge is not supported in the judgment by any authority whatsoever. In Rahimi Sanni etc. v. Oki & Oki (1971) 1 ANLR page 116 this court held:-

“In  a claim for title, as in the present case, when one of the parties had established a root of title emanating from agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain a declaration of title.”

Again in Thomas v. Preston Holder 12 WACA 78 the court held at page 80 thus:-

“In holding, moreover, that in such a case as this it was incumbent upon the appellant to prove acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that they were the exclusive owners the learned Judge erred. Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his  title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the court by applying the rules of equity rather than those strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner. In the present case we are satisfied from the evidence that the appellant has established original ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the Certificate of Purchase by Samuel in 1943 and the series of conveyances by which the appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the court would not on equitable grounds make a declaration or disturb the respondent’s possession. This in our view the respondent failed to do
……Possession for some three or four years between the date the respondent entered into possession in 1939 until the date of the attachment in March, 1943, may have been “obvious”, as found by the learned Judge, but it cannot by any straining of the authorities be held to be such long, continuous and undisturbed possession with the acquiescence of the real owner that it would be inequitable and contrary to natural justice and good conscience to eject the respondent and give possession to the appellant. As to the Statute of Limitations, this cannot be applied to a claim of this nature, but even were it applicable no stretching of the evidence would so prolong the respondent’s adverse possession as to bar the appellant’s claim.” (All the Underlinings are ours)

This statement of the law as contained in the authorities already referred to was applied with approval in the case of Elias v. Suleimon & Ors. (1973) 12 S.C. page 113. It is the failure by the learned trial Judge to observe the principles which we set out in the opening paragraph of this judgment, which led him to hold erroneously that in spite of the admission by the defendant of the plaintiffs’ title, it is still the duty of the plaintiffs to establish such a title. It is not in dispute in this case, although evidence led by the defendant was not in accordance strictly with his statement of defence, that though the original title was and is still vested in the plaintiffs, the defendant claimed to have derived his title from Exhibit 1, which is a Deed of Mortgage between the Native Authorities of Imore Town and L.A. Cardoso executed on the 25th June 1921. In that exhibit the Native Authorities of Imore Town described themselves:-

“As owners of a large piece or parcel of land situate at Ijora in the said Plan (hereinafter or partly described) in fee simple in possession free from encumbrances and upon the mortgagee demanding payment from the mortgagors to him of the sum.” (Underlining ours)

No averment was made nor was any evidence led whatsoever that the plaintiffs’ predecessors were the same as the Native Authorities of Imore Town and therefore Exhibit 1 could not be regarded as divesting the plaintiffs’ predecessors and consequently  the plaintiffs of the title to the land. No evidence was called by the defendant to show how the Native Authorities of Imore Town came to be the owners of the land, which had always belonged to the plaintiffs’ families. The submission of learned counsel for the plaintiffs is sound and the onus is therefore placed on the defendant to prove lawful possession.

Mr. Okusipe, learned counsel for the defendant did not reply to the submission made by Chief Williams. He seemed a little confused about the legal consequence of the admission by the defendant of the plaintiffs’ title. On his own he preferred to follow the manner by which the learned trial Judge treated the case before him, holding that although the defendant had admitted the ownership of the land by the plaintiffs, they (plaintiffs) still had to prove their claim to such ownership. It is this misconception of the law by the learned trial Judge, and also by the learned counsel for the defendant in the court below, that constituted the justifiable complaint of misdirection in ground 1.
We have referred earlier on to a portion of the judgment where the learned trial Judge himself stated that “the defendant admits original interest of the plaintiffs’ family” but proceeded to consider the effect of the averment in paragraph 5 of the Statement of Defence on that admission, which according to him is very important. The averment in paragraph 5 of the Statement of Defence only stated that the Native Authorities of Imore Town mortgaged the property to Lawrence Anthonio Cardoso. In considering this paragraph the learned trial Judge then made the following observation which appeals to us rather startling. It reads:-

“In my view strong evidence should have been held by the plaintiffs to rebut the averment that the person named in the Mortgage Deed quoted in paragraph 5 of the Statement of Defence quoted above were not predecessors in title of the plaintiffs.

The fact that they were referred to as Native Authorities, in my view is of no importance. The onus which rests on the plaintiffs to disprove this important point made in paragraph 5 of the Statement of Defence has not been discharged and this is fatal to the case of the plaintiffs.”

The plaintiffs did not aver in their claim that their predecessors in title were the Native Authorities of Imore Town. They claimed to own the land from time immemorial from their ancestors. This averment is admitted by the defendant. The defendant who put up this defence of deriving his title from the Native Authorities of Imore Town, must establish that the plaintiffs derived their title from such Native Authorities of Imore Town. This they had failed to do.

There was the allegation that by virtue of the interpleader summons, the judgment on which was tendered as Exhibit 7, the plaintiffs’ claim to title to the land was dismissed. The relevant portion of Exhibit 7 delivered by Webber, J., reads and is dated 1st December, 1930:-

“This is an interpleader summons in which the claimant Erunkundu Odu claims as head of the Odu family that the farm lands situate at Agia, Iguaga, Ijerre, Asabo and Ajegunle, which were attached under a writ execution creditor are the property of the Odu Family… The sole claim is as to whether the claimant has satisfied the court on the evidence that these attached lands are the property of the family. The evidence in my opinion is too meagre for this court to arrive at the conclusion that these attached lands belong to the Odu family………………. I must find against the claimaint………”
In a further judgment on the interpleader summons, dated the 20th February 1931, the same judge (Webber J) held:-

“There is no additional evidence of any value which enables me to hold that this land belongs to the Odu family. The claim in interpleader is accordingly dismissed……….”

In the interpleader claim in Suit 337/29 the plaintiffs were not parties. It was not proved that the plaintiffs are one and the same as the Odu family. In the substantive suit the plaintiffs were not the defendants in Suit 337/29. we express as startling the observation of the learned Judge in the portion of his judgment quoted above because it does not seem to us that he considered the provisions of sections 134, 135 and especially 138 of the Evidence Law. It is the defendant who has made the assertion and who must prove it, especially where he has himself admitted the ownership as pleaded in the statement of claims. The burden of proof remains on the defendant and there is nothing in the judgment to show that at one or other stage of the proceedings the burden shifted from the defendant on to the plaintiffs. By paragraph 2 of the defence, paragraph 4, 7 & 8 of the claim were admitted which means that the defendant accepts that the plaintiffs are the owners of the land in dispute “under native law and custom, having settled therein from time immemorial,” that they are the principal members of Osumba and Aladun families, and that the area of land is the communal land of the two families. Here the plaintiffs’ title is derived from settlement from time immemorial. But the learned trial Judge still wants them to prove that they had predecessors in title. It must here be stated that the learned trial Judge is formulating an issue which the plaintiffs never raised in their claim and which by the admission of the defendant, they did not raise, and which could not have been raised by inference in the defence. The observation of the learned judge is therefore totally erroneous. Learned counsel for the defendant submitted, as the learned trial Judge had also wrongly held that since plaintiffs did not controvert the averment in paragraph 5 of the Defence, which incidentally the defendant himself did not prove, the claim of the plaintiffs to title must fail.

On the issue as to whether the defendant had proved lawful possession, the following facts were put forward viz:-
(1)   mortgage between Cardoso and the Native Authorities of Imore Town Exhibit 1;

(2)   the sub-mortgage between L.A. Cardoso and Jinadu Molake Exhibit 2;

(3)   the assignment of the judgment debt obtained by L.A. Cardoso against the mortgagors of Exhibit 1 to late Jinadu Molake, the father of the defendant;

(4)   the letters of administration obtained by the children of late Jinadu Molake of whom the defendant is one of the administrators, the proof of which document was not established in the case made out by the defendant;

(5)   the sale of the right, interest and title of the Native Authorities of Imore Town to the administrators of the estate of Jinadu Molake. Distribution of the estate of Jinadu Molake to his surviving children; the defendant receiving as his own share a property at 7 Egerton Road, Lagos as well as the right, interest and title of the Native Authorities of Imore Town in the land in dispute; and

(6)   payment of compensation by Government on the acquisition of 586 acres which was shared between the plaintiffs and the defendant as well as payment of compensation on the 2nd acquisition by Government of 12 acres to the defendant alone.

We wish however to refer to these facts, deposed to by defendant, that neither L.A. Cardoso nor his (defendants) father as mortgagee and sub-mortgagee respectively, was ever in possession of the land and the defendant himself may only be said to have entered into possession of the land, which is about 2,000 acres, in 1943 after the death of his father. He also alleged that he had 50 tenants on the land but called only two of them, that is, the 2nd witness for the defendant to prove that the Badagry Cooperative Product Marketing Union Ltd. is his tenant in respect of one acre of this vast area of land, and the other tenant one Isaac Abel Taria, who claimed to have leased four plots from the defendant the size of which was not given. The other 48 tenants were not called and neither were their holdings described. The 2nd tenant said that he obtained documents and erected buildings on the four plots, and that during the civil war the documents and building were destroyed. We wish also to mention that a Certificate of Purchase issued to the administrators of the estate of Jinadu Molake when they bought the right, interest and title of the Native Authorities of Imore Town was rejected as inadmissible not having been duly registered.

It is therefore clear that, on the admission of the defendant that the plaintiffs are the owners of the land, the Native Authorities of Imore Town could only claim a legal title described by them in Exhibit 1 as “fee simple in possession”, where such title was granted to them by plaintiffs. In the absence of such proof therefore the Native Authorities of Imore Town had no title to the land which they mortgaged to L.A. Cardoso in Exhibit 2, and therefore L.A. Cardoso derived no right, interest and title whatever in the land. This being so, the late Jinadu Molake, the father of the defendant, could not have had any legal interest in the property by virtue of Exhibit 2. It follows that the administrators of his estate bought nothing because the defendant alleged that they bought the right, interest and title of the Native Authorities of Imore Town at a Public Auction Sale. In consequence of this, what the defendant stated was distributed to him as his share of the property could not vest in him what his late father as well as the administrators of his estate never had.

Learned counsel for the plaintiffs had submitted that a refusal to grant an injunction as claimed by them will result in countenancing Exhibit 1 which on the facts is a fraudulent transaction and will do great injustice to the plaintiffs as well as being inequitable since the defendant has only proved possession of a very small area, and that through two tenants out of a vast area of 2,000 acres – See Thomas v. Preston Holder 12 WACA 79 at page 80 and Ukwa & Ors. v. Awka Local Council (1965) 1 ANLR page 349 at 355. The defendant did not establish that he had spent any money to improve any portion of this land. He is not in physical possession of any portion of the land. Learned counsel therefore submitted that there is no ground in equity why the plaintiffs should be deprived of their right to an undisturbed possession of their land, the title of which remains in them. There is this aspect of the matter to which our attention was drawn. The learned trial Judge has held that the defendant has adduced ample evidence of “acts of ownership by the defendant and his ancestors as well as his predecessors in title up to the time of this action”. He further held:-

“I am satisfied from the evidence that the defendant by the Exhibits tendered and by all evidence has established long and exclusive possession of the land in dispute that he is the exclusive owner of the property now in dispute. The land in my view no longer belongs to the family of the plaintiffs”.

It is to be pointed out that the defendant never averred nor did he give evidence that he derived ownership of this land from his ancestors so that the learned trial Judge was wrong to have made this finding. In his evidence before the learned trial Judge the defendant claimed that he bought the property at a Public Auction, paid for it and obtained the Certificate of Purchase. At the time of purchase according to him (defendant) he was one of the administrators of the estate of his father Jinadu Molake and therefore one of non-mortgagees, that is, the administrators of the estate of Jinadu Molake. It is the law that unless by an order of court a mortgagee cannot buy the mortgaged property on a writ of fifa issued on behalf of the mortgagee. This point was not considered by the learned trial Judge, and it is not impossible to say that if he had considered it his conclusions would have been the same.

There is also the averment that the defendant stated that one Falade purchased the property on behalf of the administrators of the estate of Jinadu Molake. Falade gave evidence for the plaintiffs and denied the averment. The defendant on the other hand gave a version different to the averment and said that he bought the property for himself. This again did not seem to have been closely examined by the learned trial Judge who simply said that he believed the defendant’s version which in view of the pleadings went to no issue.

The defendant gave evidence which the learned trial Judge accepted that the first time possession of the land was ever obtained was in 1943 when he entered the land himself. This entry of possession was described as being made by putting about 50 tenants on the land which however was not proved in evidence except that of two. Taria one of the two witnesses who gave evidence as having purchased four plots in 1964 and 1965 deposed to the fact that his possession was disturbed in 1966. The defendant himself admitted that some of the plaintiffs are on the land, but claimed, without establishing it, that they were his tenants. It is therefore difficult to see how the learned trial Judge could have come to the conclusion that possession by the defendant as from 1943 was such “long and exclusive possession as to deprive the plaintiffs of their title as the true owners of the land.”

Learned counsel for the defendant found much difficulty in supporting the judgment of the learned trial Judge and made no direct reply whatsoever to all the points raised by learned counsel for the plaintiffs.

In the circumstances all the grounds of appeal argued by Chief F.R.A. Williams, learned counsel for the appellants, are valid and therefore sustained. The appeal against the judgment in Suit No. IK/135/69 is hereby allowed. The judgment including the award of costs is hereby set aside. We substitute for the judgment of the lower court the following:-

(1)   that the plaintiffs are declared to be the owners of the land as contained in Plan No. K. 3779 tendered in evidence as Exhibit 6 under Native Law and Custom;

(2)   N100 as general damages for trespass against the defendant;

(3)   an order of injunction restraining the defendant and/or his agents or servants from further acts of trespass on the land in plan No. K3779, i.e. Exhibit 6;

(4)   the respondent will pay to the appellants costs assessed at 70 Naira for the lower court and 235 Naira in this court.

This shall be the judgment of the court.

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Other Citation: (1975) LCN/1991(SC)