Adepeju Odunsi V. Mr. Azeez Bamgbala & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The respondents who are plaintiffs in the High Court claimed from the appellant herein and one J .O. Fashuwope, declaration of statutory right of occupancy, forfeiture and injunction in respect of a parcel of land at Tabon-Tabon, Agege, Lagos State covered by the judgment in Suit No. IK/141/65 together with Survey Plan No. AL.63/1962 which was decided in their favour.

After pleadings were filed and exchanged by the parties, the case proceeded to trial and at the conclusion, the learned trial Judge, Martins. J. entered judgment for the plaintiffs and granted all the reliefs sought. The defendants not being satisfied with the decision, appealed to the Court of Appeal. The court below dismissed the appeal of both defendants save in respect of the order of perpetual injunction made against them by the learned trial Judge.

The appellant who is the first defendant in the High Court has further appealed to this court. Both parties filed and exchanged briefs of argument. Six issues for determination were formulated by the appellant:

“(i) Whether the judgment of the Court of Appeal was not wrong in law and must it not be set aside when that court in its lead judgment did not consider at all the grounds of appeal whether Exhibits D1-D4 were validly admitted before using the document to establish the case of the plaintiffs/respondents against the appellant;

(ii) Whether it is proper to use extrinsic evidence to alter or add to the terms of a transaction which has been reduced into writing contrary to section 131(1) of the Evidence Act

(iii) Whether the plaintiffs/respondents have sufficiently proved a grant of customary tenancy in their favour against the defendants/appellants

(iv) If the plaintiffs did not prove grant of customary tenancy, could a purported admission in the statement of defence and upon which no evidence was led, constitute sufficient credible evidence to rectify the case of the plaintiffs.

(v) Did the judgment produced in evidence reflect a proper application of the principles that should guide the court when considering onus of proof in actions for declaration of title to land

(vi) Whether it was right in law for the Court of Appeal in its lead judgment to go outside the issues pleaded by the parties in coming to its decision

Only one issue for determination was identified by the respondents namely:

“Whether on the pleadings and in the circumstances of this case, Exhibits D-D4 were not admissible documents and if they are not, whether in expunging them, there remains sufficient evidence on record to sustain the claim of the plaintiffs.”

The above question does not however cover all the issues raised in the grounds of appeal.

The plaintiffs who are respondents in this court instituted the action for themselves and as representing Bamgbala family of Tabon- Tabon in Agege, Lagos State. They claimed that the father of the appellant was their customary tenant on the land in dispute. He as a tenant owned a company known as “Royal Brothers Produce Store” which was shown on the plaintiffs’ survey plan No. AL.63/1962. The father of the appellant paid annual rents for the land to the plaintiffs until he died in 1975. The appellants stopped paying rents after the death of her father. The only receipts for payment of rents covered the periods 15/10/65 to 30/9/67 and they were issued to “Royal Brother Ltd.” See Exhibits “D” to “D4”.