Steven Omo Ebueku V. Sunmola Amola (1998)

LAWGLOBAL HUB Lead Judgment Report

G. O. AGBAJE, J.S.C.

The back-ground of the appeal now before us is as follows:-

By his amended writ of summons the plaintiff, Steven Omo Ebueku, claims as follows:-

“The plaintiff seeks against the 1st, 3rd to 5th defendants a declaration of title in fee simple, absolute or alternatively according to Yoruba Native Law and Custom to all that piece or parcel of land situate at Obele Kolade, between Odunsi Street and Oseni Street, Surulere.

2. Against the 1st defendant the plaintiff seeks an order of forfeiture and for possession of the land in dispute.
3. The plaintiff also claims the sum of N400 (FOUR HUNDRED NAIRA) from the 1st Defendant for use and occupation and also mesne profits at the rate of N100.00 a month until possession is given up.

The amended writ of summons was filed on the 26th day of November, 1975 pursuant to an order of court made on 24th November, 1975. The case itself originated in a Lagos High Court in March, 1972. Then there were two defendants to the plaintiff’s action, one Sunmola Amola 1st defendant and one Joseph Adeyemi 2nd defendant.

Pleadings were ordered on 8/5/72 by Kazeem J. Pursuant to this order the plaintiff filed a Statement of Claim on 7/7/72. I need not say more about this document since it was amended more than once later in the course of the proceedings in this case. The 2nd defendant, Joseph Adeyemi settled with the plaintiff. The plaintiff then moved for and got judgment on 23/10/72 against him as per the terms of settlement agreed upon by them. Nothing turns on this judgment in this appeal so I will say no more about it.

By an application dated 27/10/72 the 1st defendant Sunmola Amola moved for the following reliefs:-

“(a) Extension of time within which to file Statement of Defence.

(b) An Order to join Chief M.A. Ajao, Mr. A.A. Ajao, Chief A.A. Adesida (the Executors and the Executrix of the estate of Chief J.A. Ajao (deceased) as 3rd, 4th and 5th Defendants.”

The prayers were granted on 28th November, 1972 by Adedipe J. Pursuant to this order the 1st defendant filed a Statement of Defence on 21/10/72 which was subsequently amended more than once. The 3rd to the 5th defendants became parties to these proceedings by this order of court. They for their part filed a Statement of Defence. To this Statement of Defence the plaintiff filed with leave of court a reply.

For the purpose of the appeal now before us it is necessary to refer to the following portions of the Statement of Defence of the 3rd to the 5th defendants. They are paragraphs 3, 4 and 5 thereof which are:-

“3. The Defendants assert that they are the Executors and Executrix of the Estate of the Late Chief J .A. Ajao who had at Obele-Odan or Obele-Kolade Surulere from December, 1955 acquired 27 acres of land from the Aboki Bada family and its members who put the said (deceased) in immediate possession of the said Land; and the documents of purchase were registered on 14th of December, 1955 as No. 14 at page 14 in Volume 699 and on 7th October 1958 as No. 13a at page 13 in Volume 699 at the Land’s Registry Ibadan.

4. The 3rd, 4th and 5th defendants aver that, when they became the executors and executrix of the estate of the Late Chie O.A. Ajao they discovered that the land in dispute now known as 4 Odunsi Street Obele-Kolade had been sold to certain person who was put in possession and who had built on the land.
5. The 3rd, 4th and 5th Defendants affirm that the said 4, Odunsi Street Obele-Kolade is a part of the 27 acres of land belonging to the said Ajao Estate and that the 1st Defendant is the rightful purchaser of the said Land.”

It is equally necessary to refer to the following portions of the reply of the plaintiffs to the Statement of Defence:-

“2. The Plaintiff avers that in an action suit No. MK/115/65 between the Plaintiff and the said defendants (the latter) admitted the title of the Plaintiff to the land the subject matter of this action.

(words in brackets mine)

3. The Plaintiff will therefore at the trial rely on the proceedings and terms of settlement filed in the said suit as estopping the 3rd to 5th defendants from denying the title of the plaintiff to the land the subject matter of this action.”

There is too a suggestion of plea of estoppel per rem judicatam against the 1st defendant in paragraphs 9, 10 and 11 of the plaintiffs amended Statement of Claim:-

“9. That the 1st defendant later wrongfully claimed title through a purported purchase by him of the land in dispute from the 3rd to the 5th defendants.

10. That the 1st defendant persisted in his denial of the plaintiff’s title even after the plaintiff has drawn the 1st defendant’s attention to the Statement of Claim, the Statement of Defence and the judgment of the High Court in Suit No. MK/115 between the plaintiff and the 3rd to the 5th defendants stating that the 3rd – 5th defendants in this suit had admitted the title of the plaintiff to the land the subject matter of this action.
11. That the plaintiff will at the trial rely and found on the proceedings and the said judgment in support of his claim to title, and as estopping the 3rd to the 5th defendants from denying the little of the plaintiff to the land the subject matter of this action.”

It would appear that after pleadings have been filed and exchanged the case was fixed for hearing on 10/2/76. On that day the plaintiff was present and represented by Counsel. The defendants were absent and unrepresented. The Plaintiff in the absence of the defendants proceeded to prove his case against them. On that day the trial judge Dosunmu J., as he then was, after hearing the evidence for the plaintiff entered judgment for him as follows:-

“I declare the plaintiff the owner in fee simple absolute or as owner under customary law to all that piece or parcel of land situate at 4, Odunsi Street, Obele Kolade. The land sufficiently described in the plan admitted as Exhibit “E”, and coloured Yellow therein.

The 1st defendant has incurred forfeiture of his holding of the said land, and he is hereby ordered to give up possession forthwith. It is further ordered that he shall pay for the use and occupation of the land at the rate of N10.00 per month from January, 1970 until possession is given up.”

By an application dated the 6th October, 1976 the 1st defendant Sunmola Amola moved for the following reliefs as regards the judgment obtained against him in his absence.

“1. An order granting him extension of time within which to apply to this Honourable Court for an order setting aside the Judgment obtained herein and by the plaintiff on the 10th February, 1976;

2. An order setting aside the said judgment and appointing a date for trial of the case;
3. An order setting aside the execution levied (including the warrant for possession executed) in pursuance of the aforesaid judgment;
4. Such further and/or other orders as may seem fit in the circumstances.

GROUND OF APPLICATION

Neither the 1st Defendant nor his legal practitioner had notice of the date fixed by this Honourable Court for the trial of the suit.

This application is made under Order 32 Rule 4 of the High Court of Lagos (Civil Procedure) Rules.”

In a counter-affidavit filed by the plaintiff in opposition to the prayers of the 1st defendant to have the judgment obtained against him in his absence set aside, the plaintiff deposed that in July 1976 he had already sold the property in dispute to one Jacob Olorunmbe of 62 Ibidun Street Lagos. By an order made by Dosunmu J. on 24/1/77 the judgment in favour of the plaintiff in the absence of the 1st defendant was set aside and the case itself was restored to the cause list and it was fixed for hearing for Monday 7/2/77. However actual hearing of the case did not begin until 26/1/78.

The case must be taken to have proceeded to trial on the last amended Statement of Claim dated 10th November, 1975 and filed pursuant to an order of court of 26/1/78 and the last amended Statement of Defence of the 1st defendant dated 8th February 1978 and filed on 9/2/78. In the course of the proceedings and by an application dated 30th January, 1978 the 1st defendant Sunmola Amola moved that Jacob Olorunmbe to whom the plaintiff said in his counter-affidavit referred to above that he had sold the land in dispute be joined as the 6th defendant and that leave be granted to the 1st defendant to prosecute against the 6th defendant a counter-claim in the following terms:-

COUNTER-CLAIM

Claims against the 6th defendant as follows:

1(i) Mesne profits at the rate of N160.00 per month from 1st August, 1976 (until possession is given up) in respect of his use and occupation and enjoyment of the property in dispute in this case, namely, 4 Odunsi Street, Obele Kolade, via Surulere.

ALTERNATIVELY,

(iii) (a) An order that the 6th defendant do file an account of all rents and profits received by him in respect of the said property since 1st August, 1976 and payment over to the 1st defendant of the total sum so collected (less all just deductions).

(b) Further or other order or orders.

2(i) An order for possession of the said property.

ALTERNATIVELY

(ii) (a) a mandatory injunction restraining the said 6th defendant his servants and/or agents from going on the said property for any purpose whatsoever without the leave and licence of the 1st defendant.”

The counter-claim is included in the Statement of Defence filed by the 1st defendant on 9/2/78 to which I had referred above. The application was granted and the 6th defendant filed a Statement of Defence to the counterclaim.

I may as well reproduce here the relevant portions of this Statement of Defence:-

“(1) The 6th defendant admits paragraphs 22 of the further amended statement of defence the 1st defendant.

(2) In answer to paragraphs 25 of the further amended statement of Defence, the 6th defendant avers that he was a purchaser for value without notice at the time of purchase.

(3) The 6th defendant avers that he has since let the premises to tenants after carrying out substantial repairs and getting water therein without let or hinderance from anyone.

(4) Whereupon the 6th defendant will at the trial contend that the counter-claim against him is misconceived in law and on the facts and should be dismissed with costs.”

In the course of the proceedings the case against the 3rd to the 5th defendants was withdrawn against them by the plaintiff. So at the conclusion of the trial in the High Court there were the plaintiff, the 1st defendant and the 6th defendant as the parties to the case.

The learned trial Judge having listened to the evidence of the parties and their witnesses held in his judgment dated 26th May, 1980 as follows:

The defendant denied ever attuning tenancy to the plaintiff in respect of the land in dispute marked Yellow in Exhibit ‘G’ and I believe him. On the evidence I believe the defendant who has remained in possession of the disputed land has a better right to possession, and the plaintiffs claim in this respect will be dismissed together with the other claims for forfeiture or mesne profits.

There is a reference to estoppel in paragraph 11 of the amended statement of claim that proceedings in Suit No. MK/115/65 constituted an estoppel against the 3rd to 5th defendants from denying the plaintiff’s title. Since however the 3rd to 5thdefendants are no longer in the case I do not desire to say any more on it. But it (sic) the suggestion is that the proceedings constituted an estoppel against the 1st defendant, I do not think that would be correct for the simple reason that he acquired his title to the land since 1966 long before the judgment in Suit MK/155/65 of April 1970. In any event the defendant was no party to the case.

The defendant has been dispossessed under a judgment which was set aside. He now claims possession from the 6th defendant to whom the plaintiff said he had sold it at a price of N12,000.00 but without any deed of conveyance. The position of the 6th defendant cannot be better than that of the plaintiff and the claim of 1st defendant against him is well founded. The 6th defendant’s (title) cannot be better than that of the plaintiff and the claim of 1st defendant against him is well founded. The 6th defendant is ordered to give up possession of the property No.4, Odunsi Street, Obele Odan Surulere marked Yellow in plan Exhibit “G” to the defendant immediately. But I dismiss all his other claims for mesne profits and account against him because it was the Court which tacitly allowed him to remain in possession until the conclusion of the trial when I thought the issue would sort itself out. “(Word in brackets mine).

The learned trial judge dealt with the root of title pleaded by the plaintiff and that pleaded by the 1st defendant in the following passages from his judgment:-

“In paragraph 4 of his pleadings, the plaintiff said of this suit as follows:-

“The land was subsequently partitioned among the various………and the portion now in dispute was allotted to the Aboki Bada Branch of the said Alago Asalu Family vide Suit No.215/1951, of which Odewale Savage Bada was the head at the material time, but no deed of partition was executed by members of the family.”

A glance at Exhibit “A” which is the Court’s Judgment in the case shows reference to plans annexed to the terms of settlement and granting different parcels of land to the disputants under the Scheme of Distribution. It was a partition by Court’s order following settlement by the parties, and I do not think a deed of partition would have been necessary in the circumstance. But the plaintiff failed to produce the plans showing that the partition was ordered by Court, so that it is impossible to say whether the land now in dispute falls inside the area alleged to have been allotted to Aboki Bada branch according to the terms of settlement on the other hand this is what the defendant pleaded of the said suit 215/1951 in paragraph 12.

In Suit 215/1951 in the then Supreme Court of Nigeria one Raniatu Anjorin for herself and on behalf of the other members of the Oduntan Line of Yiyajomu Branch of the Family sued

(1) Lawani Osumo Line of the Iyajomu Branch

(2) O. S. Bada Line (for himself and on behalf of other members of Aboki Bada Line of Olufajo Branch of the Family.

(3) Mojidi Idowu (for himself and on behalf of the other members of the Ishape Line of Olojumo Branch of the Family.

(4) Ajayi Akiyele of Aiyelogun Line and the Court by consent of parties adopted the Scheme of distribution and partition of the said vast area of land among the several sections thereof. As in the case of the plaintiff the plan of the partitioning was not produced, and thereof, it is not possible to locate the two parcels allegedly bought by Chief J .A. Ajao in the Asalu Alago Family land.”

In effect the trial court rejected the root of title on either side but dismissed the plaintiffs claim against the 1st defendant for the reasons referred to earlier on in this judgment and granted the claim for possession of the 1st defendant against the 6th defendant for the same reasons.

Both the plaintiff and the 6th defendant were dissatisfied with the judgment of the trial court and each of them appealed against it to the Court of Appeal Lagos branch. The Court of Appeal the lower court dismissed both appeals endorsing as it were the views held by the trial court for finding against them.

The plaintiff and the 6th defendant again are not satisfied with the judgment of the Court of Appeal, the lower court. Each of them has now appealed to this court against it. It is saddening that the plaintiff’s brief of Argument does not contain the issues arising for determination in this appeal contrary to the provisions in this regard in the rules of this court. Because the 1st defendant’s brief of arguments sets out the issues for determination in this appeal and the issues are along the lines indicated in the plaintiffs pounds of appeal, we allowed the plaintiff to argue his appeal on the defective brief of Argument filed by him.

It must be repeated as it has been said many times before now that the rules of this court relating to filing of briefs are meant to be obeyed strictly. The indulgence with which this court has hitherto treated defective briefs or arguments should not be counted upon to continue indefinitely. It will sooner than later come to an end. So it is in the interests of counsel to pay special attention to the briefs of arguments filed in this court by making sure that they adhere strictly to the rules of our court in that regard.

From what I have said it behoves me to set down the grounds of appeal of the plaintiff and those of the 6th defendant. As to the grounds of appeal of the plaintiffs they are as follows leaving out their particulars:-

“GROUND ONE

That the learned justices of appeal erred in law in dismissing the Appellant’s complaint based on the Statement of trial the court “That it is impossible to say whether the land now in dispute falls inside the area alleged to have been allotted to Aboki Branch according to the terms of settlement”.

GROUND TWO

That the learned Justices of Appeal erred in law in upholding the dismissal of the appellant’s claims for declaration of title, forfeiture and possession, on irrelevant grounds which neither of the parties raised in their pleadings.

GROUND THREE

That the learned Justices of Appeal erred in law by not upholding the appellant’s plea of estoppel based on the judgment in an earlier Suit No. MK/155/65.

GROUND FOUR

The Judgment is against the weight of evidence.”

The grounds of appeal of the 6th defendant are as follows:

“GROUND 1

That the learned Justices of Appeal erred in law in holding that “two things in my view make the case of the second Appellant weak. He filed the defence but gave no evidence.

GROUND 2

That the learned Justices of the Appeal Court erred in law in holding that “It is this same judgment the 1st Appellant wishes to use as the basis of his case against the Respondent. The learned judge was therefore right to say that the position of the second Appellant cannot be better than that of the first Appellant.”

I will start with the consideration of the ground of appeal which challenges the failure of both the trial court and the Court of Appeal, the lower court, to uphold the plaintiff’s plea of estoppel against the 1st defendant based on the judgment in an earlier Suit No. MK/155/65. I have shown earlier on in this judgment that the plea of estoppel was raised in the reply of the plaintiff to the defence of the 3rd to the 5th defendants and curiously enough in the plaintiff’s amended Statement of Claim. It appears too that the 1st defendant by his Statement of Defence conceded it that the 3rd to the 5th defendants were his predecessors in title in respect of the land in dispute. For the 1st defendant claimed to have bought the land in dispute from the 3rd to the 5th defendants as per the deed of conveyance Exh. K in this case dated 21st May, 1973.

The judgment relied upon by the plaintiff to sustain the plea of estoppel raised by him, Suit No. MK 115/65, was given on 7th April, 1970 before the conveyance was executed. But it is clear from the evidence in this case that the 1st defendant had acquired his interest in the land from his predecessors in title as far back as February 1966before the deed of conveyance was evenly executed in 1973. However the case suit No.MK 115/65 was commenced before the 1st defendant ever acquired any interest in the land.

It must be noted that the judgment relied upon in support of the plea of estoppel is a consent judgment.

Both the trial court and the Court of Appeal, the lower Court rejected plea of estoppel for the following reasons quoting from the judgment of court below:-

“It has been contended by the Appellants that the judgment in suit MK/115/65 – Exhibit D created an estoppel against the third and fifth defendants in that case from whom the respondent derived his title and therefore Respondent is bound by that judgment. Learned trial judge rightly in my view rejected this by saying that the Respondent had acquired his title to the land since 1966 long before the judgment in suit MK/115/65 which was delivered in April 1970. Mr. Lardner’s submission based upon a series of Exhibits J – J10 is to the same effect. The submission is backed by the statement of the law in Halsbury Laws of England 4th Edition Volume 16 paragraph 1545 at page 1043.

I endorse that statement in Halsbury’s and say that on this point the Law of England and the Nigerian Law are the same. In Abbey v. Olenu 14 W.A.C.A. page 567 at page 568 the following statement of the law occurs which is very relevant to this appeal. It goes thus:-

“Appellants’ Counsel argued, inter alia, that the respondent was bound by the judgment of the Tribunal of the Gbese Division, exhibit “B”, delivered in February, 1937, which finally established the appellants’ title to the land.

The proceedings in that case were not commenced until the year 1936, that is to say after the respondent’s purchase of the land from Fiscian, and in such circumstances he is not estopped as being privy in estate by a judgment obtained in an action against his vendor commenced after the purchase: Mercantile Investment and General Trust Company v. River Plate Trust, Loan and Agency Company (1).”

I adopt and apply the principle therein to the fact of this case.” The principle of law stated by the two courts below is sound. Counsel for the plaintiff has made the point before us in the plaintiffs brief of arguments that since the case in which the judgment was given was commenced before the 1st defendant acquired his interest in the land to which the case relate the 1st defendant will be bound by the result of the case. For this proposition reliance was based on a passage from Halsbury’s Laws of England volume 15 3rd Edition Page 198 paragraph 374 to the following effect:-

“In order that a judgment may be conclusive against a person as privy in estate to a party litigant it is necessary to show (apart from his taking with a notice of a pending action (k) that he derives title under the latter by act or operation of law subsequent to the recovery of the judgment (1) or at least to the commencement of the proceedings, and that the judgment was one affecting the property to which title is derived.” (Italics mine)

It will appear counsel has in mind the doctrine of lis pendens which provides as follows as stated by the Lord Chancellor in Sorrell v. Carpenter 2 PWms 482 at 482:-

“Where there is a conveyance made pendente lite even though the alienation be for never so good a consideration, yet if made pendent lite………..the purchase is to be set aside; and this in imitation of the proceedings in a real action at common law, where, if the defendant aliens after the pendency of the writ, the judgment in the real action will over-reach such alienation. But where there is a real and fair purchaser without any notice, it is a very hard case, especially in a Court of Equity, to set such purchase aside.”

(Italics mine)

There is no doubt that both the trial court and the Court of Appeal overlooked this aspect of the plea of estoppel by record put up by the plaintiff before coming to their decisions. For as I have just shown the previous case in which the judgment relied upon as res judicata against the 3rd to the 5th defendants was given was commenced before the 1st defendant acquired his interest in the land in dispute from them even though the judgment in the case was given after the acquisition of the interest.

The plan of the land in dispute in the previous suit MK/115/65 is Exh.D in these proceedings. There is the following evidence from the Surveyor called by the plaintiff:

“I know the land in dispute. At the instance of the plaintiff I made a survey of the land which I now produce in Exhibit “G”. The area in dispute is verged YELLOW in Exhibit G”. The area verged RED in Exhibit “G” is the same as the area edged Red in Exhibit “D”. The land edged Red in Exhibit “D” is the same as the one Edged Red in Exhibit “G”, and the disputed land falls inside the area verged Red in Exhibit “B”. The area in Red in Exhibit “B”, “D” and “G” are the same.”

The area in dispute in suit No. MK/115/65 verged “Green” in Exh. D is within the larger area verged “Red” in the same plan Exh. D.

Because of what I have just referred to the finding in the following passage in the lead judgment of the Court of Appeal, namely

“It should also be said that estoppel cannot apply in this case because the appellant has (not) established in my view that the land in dispute edged green in Exhibit D is the same as the land in dispute edged Yellow in Exhibit G in the present suit. Having failed to establish that the land in dispute in suit MK/115/65 is the same as the one now in dispute the plea of estoppel cannot stand.” (word in brackets mine)

cannot be correct. It is axiomatic that a whole includes a part of it. If this were all to be considered on the issue of estoppel raised by the plaintiff I would have held that the trial court and the lower court, the Court of Appeal were wrong in rejecting the plea. But it is not. The previous judgment relied upon as creating estoppel by record is a consent judgment. There is the judgment of this court in Talabi v. Adeseye 1977 8 – 9 SC.20 to the effect that no consent judgment or order has the slightest operation or effect whether by way of estoppel or otherwise against any third person or against any of the parties who is not shown to have consented to it. The 1st defendant is evidently a third party to the proceedings in which the previous consent judgment was given. For he was not named party in the case. Nor was it shown that he ever consented to the consent judgment. In the circumstances, the previous judgment, a consent judgment, in suit No. MK/115/65 cannot have, in the words of the decision in Talabi v. Adeseye; (supra)the slightest operation or effect whether by way of estoppel or other- wise against him. So for this reason I come to the conclusion that the plea of estoppel raised by the plaintiff was rightly rejected by the High Court and the Court of Appeal. For the same reason too I reject the contention in the plaintiffs brief of argument that even if the previous consent judgment fails to support a plea of estoppel against the 1st defendant, it is non-the-less admissible against him as a relevant fact by virtue of S.54(1) of the Evidence Act.

Having held that the plea of estoppel was rightly rejected I can now turn to the consideration of the other grounds of appeal of the plaintiff, beginning with ground 1 which I have quoted above. The complaint in this ground of appeal is about the finding of the trial court, which was endorsed by the court below- the Court of Appeal- that the plaintiff has not connected the land in dispute with the area of the land allotted to Aboki Bada Branch of Alago Asalu Family according to the terms of settlement in suit No.215/1951.

According to counsel for the plaintiff both in the plaintiffs brief of arguments and in counsel’s oral submission to us, that issue does not call for a determination in this case since, again, according to counsel it was common ground between the plaintiff and the 1st defendant at the trial that the land in dispute fell within the area of land allotted to Aboki Bada branch of Alago Asalu family as a result of the terms of settlement in the said suit No. 215/1951. If the premise upon which Counsel based his submissions were correct then because of the principle that what is admitted need not be proved it would be wrong of the trial court to say that it is not possible to tell whether the land in dispute is within the area of land allotted to Aboki Bada branch according to the terms of settlement in question, for in that situation the point is not in dispute and consequently does not call for proof.

Counsel for the plaintiff tries to substantiate his submission as to the point in question being common ground by referring to the pleadings in this case and the deeds of conveyance relied upon by the plaintiff and the 1st defendant as evidencing their title to the land in dispute that is to say Exhs. E & F, for the plaintiff, and Exh. K for the 1st defendant. Counsel then submitted that both sides claimed to have derived title to the land in dispute from a common vendor. So, according to counsel, the need to go beyond that common vendor does not arise.

As against these submissions of counsel for the plaintiff there is the finding of the learned trial judge Dosunmu J. as he then was, that there was no common ground as between the parties to this case as to what area of land the terms of settlement in suit No. 215/1951 in fact covered. If this finding is correct it definitely knocks the bottom out of the submission of counsel for the plaintiff to us that the trial Judge was in error in looking for evidence connecting the land in dispute with the land allotted to Aboki Bada Branch. For the basis for the submissions of counsel will then not exist.

It therefore behoves me to find out if the trial Judge was right or wrong in making this finding as to the absence of common ground between the parties to this case as to the area of land allotted to Aboki Bada Branch. In this regard I must necessarily examine first and foremost the pleadings in the case now before us on appeal. To this end the relevant portions of the plaintiffs statement of claim are paragraphs 3,4,5 and 6 of the amended Statement of Claim filed pursuant to the order of Dosunmu J. as he then was made on 2611/78.The paragraphs are as follows:-

“3. The land subject matter of this action is situate at Obele Odan (otherwise known as Obele Kolade) near Surulere in the Lagos State and originally formed portion of the Alago Asalu family land from time immemorial according to Yoruba Native law and custom.

4. The land was subsequently partitioned amongst the various branches of the family aforesaid and the portion now in dispute was allotted to the Aboki Bada Branch of the said Alago Asalu family vide Suit No. 215/1951, of which Odewale Savage Bada was the head at the material by members of the said family.
5. The land so allotted to the Aboki Bada branch of the family was later divided amongst its individual members, and the land now in dispute formed portion allotted to Tawakalitu family land.
6. Prior to the sale to the Plaintiff of the said land, the 1st defendant was a customary tenant of the Alago Asalu family, in respect of the area verged “BLUE” the said parcel of land falls within the area sold and covered (sic) to the Plaintiff as stated above by virtue of Deed of Conveyance dated 9th August, 1958 and registered as No. 57 in Volume 311 of the Lands Registry Ibadan now Lagos and Deed of Conveyance dated 21st January 1964and registered as No. 60 at page 60 in Volume 729 of the Lands Registry as aforesaid.”

As regards the defence of the 1st defendant the relevant Statement of Defence is the further amended defence of the 1st defendant dated 8thFebruary, 1978 and filed on 9th February, 1978. And for the purpose of the point I am now considering the relevant portions thereof are paragraphs 3, 4, 5, 11, 12, 13, 14, 15, 16 and 17 which are as follows:-

“3. This defendant denies paragraph 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the Amendment Statement of Claim.

4. This defendant avers that one Jeminotu Ajiwun in 1950 took a tenancy in respect of the land in dispute from one Odewale Savage Bada (O.S. Bada), who was the representative of the Alago Asalu Family.
5. The said Jeminotu Ajiwun erected a mud house on the land and was in possession of it until 1964 when (with the consent of her landlord) she transferred all rights and claims to the said land to the 1st defendant for the price or sum of 350 Pounds (N700) and put him in full and effective possession of the said land.
6. The said land originally formed portion of a vast area of land the absolute property under native law and custom of the Alago Asalu Family.
7. In Suit 215/1951 in the then Supreme Court of Nigeria one Rabiatu Anjorin for herself and on behalf of the other members of the Oduntan Line of Iyamoju Branch of the Family sued (1) Lawani Osuro Line of the Iyajomu Branch (2) Odewale Savage Bada Line (for himself and on behalf of the other members of the Aboki Bada Line of the Olufajo Branch of the Family (3) Mojidi Idowu (for himself and on behalf of the other members of the Ishape Line of the Olojumo Branch of the Family) (4) Ajayi Akiyele of the Aiyelegun Line and the Court by consent of parties adopted the Scheme of Distribution and partition of the said vast area of land among the several sections thereof.
8. One Chief J.A. Ajao (now deceased) purchased two parcels out of the said vast area after the partition thereof from the rightful now owners, namely,

(i) a parcel of over 10 acres from Tairu Dada Ojo Shittu Sanusi, Aminatu Sanusi, Saratu Ajoke, Shifawu Sanusi, Jarinatu Dada Ojo and Bintu Sanusi by a Conveyance dated 14/12/55 and registered as No. 14 at page 14 in volume 699 Lagos and

(ii) another parcel of 9 acres from Tawakalitu Bada by a Conveyance dated 7th October, 1958 and registered as No. 13 at Page 13 in volume 699 Lagos.

14. The defendant avers that the land in dispute is within one or both of the above conveyances.
15. The said Chief J.A. Ajao subsequently died testate and probate of his will was granted to the 3rd, 4th and 5th Defendants herein.
16. By a purchase receipt dated the 22nd February 1966the 3rd – 5th defendants as legal personal representatives sold the said land in dispute to the 1st defendant and confirmed his possession thereof.
17. By a Deed of Conveyance dated the 21st May, 1973 and registered as No. 12 at page 12 in Volume 1424, Lagos they conveyed the said land to him in fee simple.”

It is clear from the above that paragraph 3 of the plaintiff’s Statement of Claim which alleges that the land in dispute is situate at Obele Odan near Surulere Lagos State and that it originally formed portion of the Alago Asalu family land is not denied expressly or by necessary implication so it must be taken to have been admitted or established (See Lewis & Peat (N.R.I) Ltd. v. Akhimien 1976 7 SC. 157). In fact it cannot be otherwise in this case in view of paragraph 11 of the defence of the 1st defendant which says that the land in dispute formed portion of Alago Asalu family land. So it can be safely said that on the state of the pleadings it is common ground that the land in dispute formed originally part of Alago Asalu land. Paragraph 4 of the Statement of Claim which alleges that Alago Asalu family land was partitioned among the various branches of the family and that as a result of partition in accordance with the terms of the judgment in Suit No. 215/1951 the land in dispute was allotted to Aboki Bada Branch of Alago family formerly was expressly denied by paragraph 3 of the defence the 1st defendant. The latter, in turn, by paragraph 12 of his defence alleged that the said suit No. 215/1951 resulted in a scheme of distribution and partition of Alago Asalu family land among the various sections or branches of the family. The combined effect of paragraphs 13 -17 of the defence which I have reproduced above is that the 1st defendant claimed through his predecessors in title to have derived his title to the land in dispute from the rightful owners thereof according to the scheme of distribution or partition in the said suit No. 215/1951.

From the analysis I have just made, it can equally be safely said that both the plaintiff and the 1st defendant were agreed at the trial, having regard to their pleadings, that there was a scheme of distribution and partition of Alago Asalu family land among all the branches of that family in Suit No.215/1951. However as to what portion of Alago Asalu family land went to which branch of that family as a result of the scheme of distribution and partition in the said suit No. 215/1951. I cannot find any common ground between the plaintiff and the 1st defendant, on the pleadings in this case.

As I have said earlier on in this judgment, the 1st defendant denied in his defence that the land in dispute was allotted to Aboki Bada branch of Alago Asalu family as a result of what happened in suit No. 215/1951 as contended for by the plaintiff. The 1st defendant then pleaded that his predecessor-in-title bought a vast area of land including the land in dispute from the true owners thereof following the terms of settlement in the case in question. He gave the name of one of the vendors involved as one Tawakalitu Bada. That the vendors were the true owners of the land in question was the opinion or suggestion of counsel for the 1st defendant in his defence. Whether the opinion or suggestion is well founded is another matter depending on what suit No. 215/1951 decides.

The conclusion I reach therefore is that in the face of the pleadings both the plaintiff’s and the 1st defendant were agreed that the land in dispute formed part of Alago Asalu family and that as a result of the scheme of distribution and partition in suit No. 215/1951 Alago Asalu family land was partitioned and allotments thereof were made to the various branches. In other words both sides are saying that suit No. 215/1951 creates estoppel by record in this case. In a situation like this where both sides rely on a previous judgment, the task then facing the court is that of deciding what that judgment decides. See Okukeye v. Kasumu 1967 1 All N.L.R. 293. This is what the trial judge did in this case. I cannot find any common ground in the face of the pleadings which precludes the trial court from doing this.

The judgment in suit No. 215/1951 is as follows:-

“COURT: Terms of Settlement approved and made an Order of Court with plans annexed. Record may be withdrawn and the file closed.

(Sgd.) M. M. ABBOTI.

IN THE SUPREME COURT OF NIGERIA.”

It is clear that the terms of settlement incorporated two plans to be used for the scheme of distribution or allotment agreed upon.

From the analysis I have made earlier on in this judgment I have shown that in the face of the pleadings one cannot say that there was no issue raised in this case as to the land allotted according to the terms of settlement in the 1951 case to Aboki Bada Branch. I have shown too that there was no dispute as between the plaintiff and the 1st defendant as to the land in dispute in this case. But the latter notwithstanding the fact still remains that the plaintiff to succeed in his claims must connect the land in dispute with the land said by him to have been allotted to Aboki Bada Branch according to the said terms of settlement.

I will now go on to examine the other ground on which Counsel for the plaintiff based his submission that there was no need for the trial court to go into the issue as to whether the land in dispute formed part of the land allotted to Aboki Bada branch. Counsel submitted both in the plaintiff’s Brief of Argument and in oral submissions that the fact that the land in dispute formed part of the land allotted to Aboki Bada was common ground on the evidence before the trial court. For this submission counsel referred to the following evidence for the plaintiff which came from one O.S. Bada, and which, according to counsel, was uncontradicted:-

“In 1951 the Asalu Alago Family land was partitioned at the instance of a member into two -ITIRE AND ISOLO. Itire portion was subdivided into 3 parts – Aboki Bada Branch, Ishape Branch and Aiyeledun Branch. I am a member of Aboki Bada Branch, I know the land in dispute which is a portion of the area allotted to Suwebatu Falodun and Tawakalitu from the area partitioned to Aboki Bada branch. The first sale by Falodun and Tawakalitu was without my knowledge, and they were not bound to tell me before they sold. I cannot attack them as it is their property. I do not know when they sold. I was managing the portion of Falodun and Tawakalitu for them except the portion sold to the plaintiff. It is not true that I was disturbing the plaintiff’s tenants on the land in 1964 because it was sold to him by the owner. We got more money from the plaintiff because he got it cheaper.”

Counsel for the plaintiff referred to the following recitals in Exh. K – the deed of conveyance which the 1st defendant said he got from his predecessors-in-title, evidencing the sale of the land in dispute to him.

“WHEREAS Odewale Savage Bada, Alhaja Suwebatu, Falohun Maniratu, Kasumu Bada, Tawakalitu Bada, Ishawu Olatunde Bada are all principal members of Aboki Bada family……WHEREAS the said vast acres of land aforesaid become a disputed land among the descendants of the said Alago…….AND WHEREAS by an action in Suit No. 215/1951 in the Supreme Court of Lagos between Rabiatu Anjorin (for herself and on behalf of the other members of Oduntan Line of Iyajomu Branch of Asalu Alago family (Plaintiff) and (1) Lawani Osuro Line of the Iyajomu branch of the Asalu Alago family

(2) Odewale Savage Bada (for himself and on behalf of the other members of Aboki Bada Line of the Olufajo Branch of the Asalu Alago family……..

(3) Mojidi Idowu (for herself and on behalf of other members of the Ishape line of the Olojumo branch of the Asalu Alago family

(4) Ajayi Akinyele of the Aiyelegun line (defendants) the said Court in its judgment of 30th day of November, 1953 by consent of the parties, adopted the Scheme of distribution in the terms of the settlement and the clearly defined Scheme of distribution shown in the plan also agreed to by the parties and embodied in the judgment whereby the Aboki Bada family received 85 acres of the said land in undivided shares which the said family later shared among the said members of the family and accepted by all…WHEREAS the late Chief Joseph Adediran Ajao purchased 18 acres of the said land from Tairu Dada Ojo Shittu Sanusi Aminatu Sanusi Saratu Ajoke Shifawu Sanusi Sariatu Dada Ojo Bintu Sanusi and a conveyance dated 14th day of December, 1955 and registered as No. 14 in volume 699 and also purchased another 9 acres from Tawakalitu Bada in conveyance dated 7th day of October 1958 and registered as No. 13 at page 13 in Volume 699 of the Register in Land Registry Ibadan.”

There is no doubt that the implication of the evidence of O.S. Bada quoted above is that the land in dispute formed part of the land allotted to Aboki Bada branch of Alago Asalu. If this were legal evidence in proof of the land allotted to Aboki Bada according to the terms of settlement in the 1951 case then the submission of Counsel for the plaintiff will be unassailable since the evidence was uncontradicted. But is the evidence legal evidence for the purpose in question In this regard I must refer to Section 131 Sub-Section 1 of the Evidence Act which provides as follows:-

“131(1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence is admissible under the provisions herein before contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence; Provided that any of the following matters may be proved.”

The provisos are irrelevant here.

Then there is the case of Abiodun & ors v. Ogunyomi 1962 1 All N.L.R. 551 Onyeama Acting F.J. as he then was said at page 554 as regards the admissibility of oral evidence in proof of judicial proceeding:-

“The present case illustrates the importance of compliance with the Sheriffs and Civil Process Act. Section 50 of the Act provides that after a sale of immovable property has become absolute the court shall grant a certificate of purchase. The Certificate is to be in the Form 46 in the First Schedule to the Judgments (Enforcement) Rules, which provides for a description of the land, and the proper procedure for the sheriff to follow is contained in Order VIII, rule 5(a) and Order 1, rule 13. If he follows this procedure the certificate should be issued as a matter of course. The certificate requires to be registered under the Land Registration Act, for which purpose a plan of the land would be required, and once the certificate is issued oral evidence of the sale would be excluded under section 131 of the Evidence Act.” (italics mine).

In this case it was stated that oral evidence of sale will be excluded because of the provisions of Section 131 of the Evidence Act once a Certificate of Purchase issued by a court is in existence. By the same token once the terms of settlement relied upon in this case form part of the judgment of a court oral evidence of the terms of settlement will be excluded by virtue of Sec. 131(1) of the Evidence Act. The conclusion I reach therefore is that because of Section 131 of the Evidence Act, the oral evidence of O.S. Bada before the trial court as to what the judgment in the said 1951 case gave to Aboki Bada branch is inadmissible.

It is true that neither the learned trial Judge nor the court below did refer to the evidence of O. S. Bada. But because of what I have just said their failure to refer to the evidence could not have occasioned a miscarriage of justice In this case.

I now come to the recitals in Exh. K – the deed of Conveyance relied upon by the 1st defendant as evidencing his title to the land in dispute. The question that arises here is, again, whether the recitals which I have quoted above are evidence in this case of the truth of the statements contained therein. If they are, then the contention of Counsel for the plaintiff to the effect that the 1st defendant has admitted in evidence at the trial the allegations in paragraph 4 of their Statement of Claim will be well founded. If in fact there was such legal evidence from the 1st defendant then the plaintiff will be entitled to rely on it, to support his weak case. See the case of Akinola v. Oluwo 1962 (1) All N.L.R. 224 at 227. But are the recitals evidence of the truth of what they say Recitals generally speaking are not evidence of the truth of what they say unless of course the presumption in Section 129 of the Evidence Act can be said to apply to such recitals. Sec. 129 of the Evidence Act provides as follows:-

“129. Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

Exh. K was executed on 21st of May, 1973. The case of John Kobina Seys Johnson and others v. Irene Ayinke Lawanson and Another (1971) 1 N.M.L.R. 380 has now decided it that the decision in Omosanya v. Anifowose (1959)4 S.C. 94 correctly construes Section 129 of the Evidence Act and that any decision to the contrary was wrong. In Omosanya v. Anifowose it was held that the presumption created by the section in question was not available to a party who could not refer the deed he was relying upon to a contract 20 years old or more at the date of the deed. The contract Exh. K in this case was made as I have said on 21st May, 1973.The recitals 8 relied upon in this case cannot be said to be contained in deeds, or instruments 20 years old at the date of the contract. Even if it is said that the judgment of 30th November 1953 which contained in it terms of settlement in the said 1951 case may qualify as an instrument within the provision of Section 129 of the Evidence Act that instrument was not 20 years old as at 21st May 1973 the date of the contract Exh. K. It follows therefore in my judgment that the recitals relied upon by Counsel for the plaintiff are inadmissible for the purposes contended by Counsel. It is true that neither the court below nor the trial court alluded to the recitals in question. But because of what I have just said their failure to do so could not have occasioned a miscarriage of justice.

It follows therefore in my judgment that I reject the contention of Counsel for the plaintiff that both the court below and the trial court did not decide the case now before us on appeal upon the true position of the issues between the two parties based on their pleadings as well as the evidence before the court. I am equally satisfied that the trial court was right in holding that there was a need for the plans adopted for the partitioning of Alago Asalu family land in the judgment in the said suit No. 215/1951 to be produced in evidence before it. And since those plans were not before the trial court I am also in agreement with it that neither the plaintiff nor the 1st defendant had traced his title to the true owners of the land in dispute according to the terms of settlement in the said suit. In conclusion I hold that ground 1 of the plaintiffs grounds of appeal fails in my judgment.

For the reasons I have just given I hold that ground 2 of the plaintiffs ground of appeal fails too. Ground 2 complains that the learned Justices of Appeal Court had no legal basis to uphold the dismissal by the trial court of the plaintiff’s claims for a declaration of title, forfeiture and possession. The grounds of the complaint were that the decisions were based on irrelevant grounds which neither party to the case raised in their pleadings. This ground is obviously a variant of ground 1 of the Grounds of Appeal which I have just disposed of. Incidentally Counsel for the plaintiff himself adopted in part his arguments in respect of ground 1 on this ground of appeal. In his further arguments on this ground of appeal counsel alluded to the passage from the judgment of the trial court to the effect that the title conveyed by the two deeds of conveyance Exhs. E & F relied upon by the plaintiff was voidable. The implications of this finding will appear to be that Exhs. E & F relied upon by the plaintiff are good until they are set aside and will give the plaintiff a better title to the land in dispute than the 1st defendant who relied upon Exh. K a deed of conveyance held to have passed no interest in the land in dispute to the latter by the trial court.

The position has been put straight in the following passage from the lead judgment of Adenekan Ademola J.C.A.:-

“Before leaving this aspect of this appeal I might just as well say that I do not agree with the learned judge that Exhibit E & F gave the first appellant a voidable title over the land in dispute. If the expression “voidable title” is taken to mean voidable in respect of Alago Asalu Family such would be wrong for whatever title first appellant may have is title derivable from the persons who sold the land to him who did not describe themselves in Exhibit E as selling for and on behalf of Asalu Alago Family.”

I endorse the views expressed above by the learned Justice of the Court of Appeal. It represents in my view the true legal position as regards Exhs. E & F. So in my judgment the arguments in the plaintiffs brief of argument on the basis of the finding of the trial Judge that Exhs. E & F are voidable are founded on a false premise. That disposes of the additional point made.

Having rejected all the grounds of appeal filed by the plaintiffs it follows in my judgment that his appeal must fail.

I now turn to the appeal of the 6th defendant who as I have said above bought the land in dispute from the plaintiff at a time after the plaintiff got judgment in the absence of the 1st defendant in this case. The judgment in the absence of the 1st defendant was eventually set aside for the very good reason given by the 1st defendant that neither he nor his Counsel was served with notice of the hearing date of the case. At the end of the day the learned trial Judge in his judgment held as I said above that on the evidence before him the 1st defendant who was in possession of the land in dispute had a better title to it than the plaintiff.

There was undisputed evidence before the trial court that the 1st defendant was in possession of the land in dispute before the plaintiff negotiated for it. It was the plaintiffs case that the defendant later attorned tenancy to the plaintiff in respect of the land. The defendant denied this in his evidence in court and the learned trial judge believed him.

The trial Judge having held and rightly too in my view that the paper titles relied upon by both sides were ineffectual, for the purposes contended for, he had no other alternative than to base his decision on the fact as to who as between the plaintiff and the 1st defendant was in possession of the land in dispute at all times material to this case. In this regard one must perforce refer to Section 145 of the Evidence Act which says:-

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner,”

Because of these provisions the finding of the learned trial Judge based on the possession of the land in dispute by the 1st defendant that the latter had a better title to the land in dispute than the plaintiff cannot in my judgment be faulted. And since the 6th defendant derived his title to the land in dispute from the plaintiff during the pendency of this case and the 6th defendant is in fact a party to this case the title of the 1st defendant to the land in dispute must necessarily be better than that of the 6th defendant to it.

I am satisfied that both the trial court and the court below, the Court of Appeal, correctly applied the doctrine of Nemo dat quod non habet to the case of the 6th defendant and correctly upheld the claim of the 1st defendant against him.

Counsel for the 6th defendant in the Brief of Argument of the 6th defendant and in his oral statement to us made the point that neither the trial court nor the Court of Appeal directed their minds to the equitable doctrine of delay defeats equity in their application of the maxim Nemo dat quod non habet in this case. I have reproduced above the Statement of Defence of the 6th defendant to the claim of the 1st defendant against him. Nowhere in it can I find any plea of laches and acquiescence on the part of the 1st defendant. The 6th defendant gave no evidence in his own behalf. In the circumstances I cannot find any grounds for the application of the maxim of delay defeats equity in this case.

The defence of the 6th defendant was that he was a purchaser for value without notice at the time of the purchase by him of the land in dispute. This in my view is a clear case where the doctrine of lis pendens which I have stated earlier on in this judgment would have operated if the 6th defendant had not been made a party to this case. For the judgment in this case would have over-reached the sale of the land in dispute by the plaintiff to the 6th defendant. Be that as it may, the 6th defendant is a party to this case. In my judgment therefore I find no substance in any of the grounds of appeal filed by him. In the result the appeal of the plaintiff and that of the 6th defendant are hereby dismissed by me with costs assessed at N500.00 by each of them to the 1st defendant.A. O. OBASEKI, J.S.C.: I had the privilege of a preview of the judgment just delivered by my learned brother, Agbaje, J.S.C. It has dealt exhaustively with all the issues raised in this appeal. The opinions of my learned brother on all the issues accord with mine and I adopt those opinions as mine. For the reasons so ably set out in the said judgment, I too will dismiss this appeal and I hereby dismiss the appeal and I award the respondent costs in the sum of N500.00 against each appellant.K. ESO, J.S.C: I am in full agreement with the judgment of my learned brother Agbaje J.S.C. I have also had the advantage of reading the concurring judgment of my learned brother Oputa, J.S.C. and I am in full agreement.

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SC.206/1985