Alhaji Ganiyu M. B. Iseogbfken & Anor. Vs Alhaji. Sikiru Gberigi Adelakun & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

A. M. MUKHTAR, J.S.C.

As per the writ of summons taken out by the plaintiffs in the High Court of Justice of Lagos State the plaintiffs claimed the following reliefs:

‘(i) A declaration that the hereditaments situate at and known as No.24 Onisemo Street, Lagos is the family property under Yoruba Native Law and Custom of the decendants of Ajegun Bashua (deceased)

(ii) Possession of such portion of the said hereditaments as are in the possession or control of the defendants or any of them.

(iii) And in account of all rents and profits collected by the defendants from tenants on the said hereditaments and payments of the said rents and profits in die plaintiffs. Annual rental value is 50.00k.’

Learned counsel exchanged their pleadings, and the pleadings went through series of amendments. Briefly, the case of the plaintiffs is that they are the only surviving principal descendants of the family of late Ajegun Bashua who originally owned the land in dispute, which is situate at No. 24 Onisemo Street, Lagos. Ajegun Bashua had two children; Sule alias Baba Musa and Sinatu Abiodun. who was survived by a daughter Alhaja Suwebatu Adufe, who was survived by the plaintiffs, Sule having died without any child. Alhaja Suwebatu exercised many acts of possession on the land in dispute and even caused an iron sheet structure to be erected thereon, and leased the property out. She continued to collect rents from the tenants until she died in 1981. After her death the defendants who are the descendants of one Bakare Iseogbekun who was an arota of Ajegun Bashua instructed a solicitor to write to the tenants forbidding them from paying rents to the plaintiffs. The defendants started collecting rents and profits of the premises; and have now been in unlawful possession of the land by themselves or by their tenants. The defendants as per then- amended statement of defence denied most of (he averments in the amended statement of claim. Their case is that Ajegun was not a blood relation of the Bashua family, but was son-in-law to Esubi Bashua having married Seliyat his daughter. Seliyat begat Ayawo Ajegun and Sule Ajegun. The land in dispute originally belonged to the Onisemo family, from which Esubi Bashua got a parcel of land, and gave a portion of it to Ayawo Ajegun.

The parcel of land given to Esubi Bashua was later registered in the name of Obashua under crown grant dated 19th November 1874. Ayawo Ajegun and her husband Bakare were put in possession of the land including the land in dispute without any challenge from anyone until they died. They were survived by Abdullahi Bakare Osho popularly called lseogbekun and their ownership of the land in dispute was confirmed in the crown grant of one Alli, the owner of an adjourning property No. 12 Bridge Street Lagos. The defendants traced their title to the laud to Chief Obashua. One Madam Suwebatu Adufe the plaintiffs’ mother was collecting the rents of the properly from the tenants therein, but did not account for the rents she collected to the defendants until she died. The defendants denied that the plaintiffs mother was in possession of the property in dispute, but stated that she, was a trespasser on the property. Or the other hand the 4th to 6th defendants admitted that the plaintiffs mother was related to the Ajeguns and that was hew she came to the property, and so their claim to ownership together with 1st – 3rd defendants is liable to forfeiture. The 4th to 6th defendants thus counter-claimed as follows:

“37. (i) A declaration that the Bashua chieftaincy family is the person entitled to statutory Right of Occupancy to the property known as No. 24 Onisemo Street, Lagos,

(ii) A declaration that the Plaintiffs and 1st to 3rd defendants held the properly No. 24 Onisemo Street. Lagos under native law and custom of Lagos and as allottees of Bashua Chieftaincy Family land.

(iii) Forfeiture of the rights and interest of the plaintiffs and 1st to 3rd defendants in respect of 24, Onisemo Street, Lagos, (iv) Possession of die said property No. 24 Onisemo Street, Lagos.’ After the completion of pleadings panics adduced evidence. At a stage of the proceedings, Alhaji M. A Kekere-Ekun Alhaji R. A. Adewale, and Alhaji Rafiu Akinlade sought to be joined as defendants/counter-claimants, and the court granted their order of joinder. This court also granted the orders of substitution of some of the original parties who became deceased. All evidence before the court were evaluated by the learned trial judge who at the end of the day found the claim of the plaintiffs and the counter claim of the 4th – 6th defendans not proved. Consequently he dismissed both the plaintiffs claim and the – 6th defendants counter-claim. Dissatisfied with the decision the plaintiffs appealed to the Court of Appeal, Lagos Division.

The Court of Appeal allowed the appeal in part, and also dismissed it in part as follows:

“In the final analysis, this appeal succeeds in part. To the extent to which it complains against the order of the court below dismissing the first leg of the claim which is for declaration of title, this appeal is dismissed. However, this appeal is allowed in respect of the order made by the court below concerning reliefs 2 and 3. The judgment of the court below affecting these two relicts is hereby set aside. In its place is the judgment entered in favour of the plaintiffs/appellants but against the defendants/respondents on the following terms:

(1) possession of No 24 Onisemo Street, Lagos now in the possession of the defendants shall immediately revert to the plaintiffs/appellants.

(2) the 1st and 3rd defendants/respondents shall render account of all rents and profits collected by them from the tenants on No. 24, Onisemo Street. Lagos from l°7v up to date and same shall be paid over to the plaintiffs inclusive of profit thereon.’

The 1st -3rd defendants were aggrieved by the decision of the Court of Appeal, hence they appealed to this court. The 4th- 6th defendants were also agrieved, and they cross-appealed to this court against the decision of the lower court.

In pursuance to the rules of this court, briefs of argument were exchanged by learned counsel to the parties, and the briefs were adopted at the hearing of the appeal. I will herein commence with the treatment of the main appeal before proceeding to the cross-appeal. The issues for determination distilled from the grounds of appeal in the amended appellants brief of argument are as follows:

1. Whether having regard to the time the appellants’ brief of argument was filed in the court below being outside the 60 days allowed by the rules of court and no application filed, served nor argued for extension of time, the lower court could be said to be competent lo have exercised its jurisdiction properly, as the appeal before it, was incompetent
2. Whether the identity of the land in dispute was proved on probabilities when Exhibit A tendered by the plaintiffs/appellants/respondents has no relationship with any property at Onisemo Street, Lagos, but with Bridge Street, Lagos and there is no evidence nor any pleading that Onisemo Street, Lagos, was once Bridge Street, Lagos.
3. Whether having regard to the pleadings and evidence of the appellants to the effect that their ancestors and themselves, have been in continuous and undisturbed possession of the land since 1836, which was no where denied by the plaintiffs/respondents, the learned Justices of Appeal were right to ascribe long possession of between 1950 to 1981 to the plaintiffs/respondents.
4. Whether the plaintiffs/respondents discharged the onus placed on them by law to warrant a decision in their favour especially when they alleged payment of tenement rate in respect of the premises and failed to show any receipt either by them or any other person in respect of the land in dispute? The respondents in their brief of argument raised a single issue for determination which is:

‘Whether this Honourable court should interfere with the judgment of the lower court which had acted judiciously and judicially in coining to a just decision on the 9th day of April, 2002.’

The 3rd – 5th respondents in their brief of argument formulated the following issues in the alternative:- Whether the appellants and the 1st – 2nd respondents were able to prove or show better title than the 3rd – 5th respondents, entitling them to possession of the property in dispute. Or, should possession be granted to the appellants, and, or the 1st – 2nd respondents, both who were not able to show or prove a better title than the 3rd – 5th respondents .

I will commence the treatment of this appeal with issue (1) in the appellants brief of argument supra. The appellants grouse in this issue is the lateness of the plaintiffs/appellants/respondents brief of argument in the Court of Appeal. It is the submission of learned counsel for the appellants that the appeal at the Court of Appeal ought to have been struck out for want of diligent prosecution, the fact that the learned counsel for the respondents failed to raise objection. He placed reliance on the Court of Appeal case of Iro & Ors v. Echewendu & Ors 1996 8 NWLR part 468 page 629. In reply the learned counsel for the respondents argued that the appellants ought to have raised the six days lateness in filing appellants brief of argument at the Court of Appeal.

This was not made an issue at the lower court and so having failed to raise the issue, they cannot now raise it. The learned counsel further submitted that the late filing of the appellants brief of argument did not affect the substance of the appeal which was heard on its merit and in good faith. I have looked at the record of proceedings before me and that of the courts copy and 1 cannot find a page 208 referred to this court by the appellants in their brief of argument, so the claim of the appellants in their brief of argument, that the record of proceedings was collected by the respondents cannot be ascertained. At any rate the complaint that the appellants brief was filed some six days after the period allowed by the rules should have been raised m the Court of Appeal where the said brief of argument was filed and adopted at the hearing of the said appeal. I wonder why the appellants, then the respondents did not raise it as a preliminary objection or an issue when the appeal was about to be heard, until now? This is like wanting to take medicine after death. It is too late in the day to raise the issue now. Assuming this issue (1) is resolved in favour of the present, appellants, then what will be the effect, when the appeal in the lower court has been heard and determined on its merit? Will this court be expected to strike out the appeal before this court, when the appeal to be struck out was the appeal in the lower court to which the brief complained against is related? Definitely not the learned counsel slept on their right as he failed to raise the issue timeously.

The case of Iro v. Echewendu supra is distinguishable front this instant case because

(a) it was raised timeously in the Court of Appeal, and the appellants refused/failed to file an application for extension of time to file the appellants brief of argument,

(b) the respondents did not wait until it appealed to this court before it raised it. Although rules of court arc made to be obeyed (in this case Order 6 Rule 10 of the Court of Appeal Rules 1981) the non-compliance in that case was not brought to the attention of the court, so the court disposed of the appeal on its merit. I am sure if the appellants had succeeded in their appeal, the lateness wouldnt have mattered. In the light of the foregoing, this issue is resolved in favour of the respondents, and ground (1) of appeal which covers it fails and it is hereby dismissed. The appellants complaints under issues (2) and (3) supra is predicated on the lower courts finding on possession based on exhibit A. Exhibit W which was admitted in evidence through the 1st plaintiff, is a lease agreement dated 31st of January 1952 between Suwebatu Adufe with one Gabriel Ade Kehinde. The learned counsel for the appellants has submitted that even if 24 Onisemo Street, Lagos could be said to be the same as Bridge Street Lagos, the plaintiffs possession since 1952 or thereabout notwithstanding, the onus to establish the identity of the land was on the plaintiffs/respondents. The learned counsel has argued that the evidence of possession by the appellants since 1836 was no where disproved neither was it established that both the mother of the plaintiffs nor the plaintiffs themselves were ever in possession of any part of No. 24 Onisemo Street.

Reliance was placed on the case of Shell BP Ltd v. Abelli & Ors 1974 1 All NLR page 19. In reply, the learned counsel for the respondent has contended that there was no controversy on the identity of the land in dispute neither at the High Court nor at the Court of Appeal. At this juncture I will reproduce the relevant pleadings in respect of this discussion. In their final amended statement of claim the plaintiffs made the following averments:

2. The land in dispute is situate at and known as No. 24 Onisemo Street, Lagos. It consists of two main houses; one is made of bricks and the other is built of iron sheets.
3. The land in dispute was originally owned by Ajegun Bashua who died intestate in Lagos very many years ago and was survived by only two children.
4. The two children were Sule (otherwise known as Baba Musa) and Sinatu Abiodun. Both were in possession of the land in dispute until they died.
5. Whilst Sule Alias Baba Musa left no issue in his life time. Binta Abiodun was survived by one daughter by name Alhaji Suwebatu Adufe who died on the 2oth of February 1981 survived by the 1st and 2nd plaintiffs herein.

6(a) Before her death, the said Alhaja Suwebatu Adufe was in possession of the land in dispute. In fact she was the person who caused the iron sheet house to be erected on the said land in 1950.

(b) In the same year the said Alhaja Suwebatu Adufe employed one licensed surveyor by name Mr. M. A. G. O. Thompson to survey the portion which housed the iron sheet house. Accordingly a survey plan No. T/2/1/52 dated 16th January 1952 was so produced.

(c) On the 31st day of January 1952 Suwebatu Adufe granted a lease of ten years on die land in dispute and the said lease was registered at No. 18 at page 18 in Volume 919 of the Registrar of Deeds kept at the Lagos State, land Registry Lagos Nigeria. The above acts i.e 6a-6c arc acts of possession and ownership exercised by Alhaja Suwcbaiu Adufe the plaintiffs’ mother on the land in dispute.

7. She was the only one who hired out all the four bedrooms in the said incorrugated iron sheet house to tenants and she in fact collected the rents therefrom until she passed away on February 20 in 1981.
8. It was at this stage, i.e after the death of the plaintiffs’ mother that the 1st to 3rd defendants instructed a solicitor to write to all the tenants of the said iron sheet house forbidding them from paying their rents to the plaintiffs”.

In support of the above pleadings the 1st plaintiff gave the following pieces of evidence:

“The land in dispute situate at No. 24, Onisemo Street, Lagos. There are 2 buildings on the land. The first building is made of bricks and the other is made of iron sheet. The original owner of the land is late Ajegun Bashua. Bashua had 2 children, namely Sule Baba Musa and Sinatu Abiodun. Both children are now deceased. Died childless. Baba Musa and Sinotu Abiodun lived and died on the disputed land. Baba Muse had no child, living now. Abiodun had a child namely Alhaja Suwebatu Adufe. Suwebatu Adufe died on 20.12.81. Suwebatu Adufe was my mother. In 1950, my mother built a combated iron sheet or structure on the land. My mother before she died engaged a licensed surveyor to survey the disputed land. He surveyed the land. The name of the licensed surveyor is H.A.G. Thompson This is lease agreement registered. There are 4 rooms and she collected the rent up to the date she died on the 20.2.81. After the death of my mother, the defendants engaged a solicitor who they should not (sic) their rent to us (plaintiff and my sister) because they claimed to be both the land in dispute and the structure on the land’. The above pieces of evidence supported the plaintiffs claim and they were consistent with it. In their amended statement of defence, it was admitted that the land in dispute is situate at No. 24 Onisemo Street. Lagos and they interalia averred thus:-

‘7. With reference to paragraph 3 of the statement of claim, the Defendants aver that the land in dispute, i.e 24 Onisemo Street, Lagos originally belonged to the PAGE| 9 Onisemo family.

8. Many years ago, the said Lsubi Bashua, got a parcel of land at Idunmota from the Onisemo family and gave a portion (of which the land in dispute forms a part) to his Grand daughter Ayawo Ajegun and her husband one Bakare Akeresewu who was an Aseforiji from Emure-Ekiti in Ife (Ile-Ife) to live upon.
9. The said parcel of land given to Esubi Bashua was later registered in the case of Obashua under Crown Grant dated 19th day of November 1874 as No. 190 at page 190 in volume 8 of the Register of Deeds at the hands Registry, Lagos.
10. The said Ayawo Ajegun and Bakare Akeresewu her husband, were put in possession of the land including the land in dispute in 1836. They built a mud house on the land and lived in it throughout their life time without any challenge. They died several years ago and were survived by their only son. Abdulai Bakare, who continued in possession and also lived and died in the house also without any challenge from any quarters. 10a. The real name of the only issue of Ayawo Ajegun and Bakare Akeresewu that is. Abudulai Bakare is Abdulai Bakare Osho and is hereinafter referred to as such. The name Iseogbekun was an alias of the second son of Abdulai Bakare Osho named Musa Bakare Osho (Alias Iseogbekun). This Musa Bakare Osho became so popular and by his popularity his alias fseogbekun had since been attached so firmly as if it were the name of the family. 10b.

The ownership of Abdulai Bakare Osho of the land in dispute was also confirmed in the Crown Grant of one Alli, the owner of the adjoining property, No. 12 Bridge. Street, Lagos registered under Crown Gram dated 20th day of August, 1968 as No. 128 at page 128 in volume 3 of the Register of Deeds at Lagos Registry, Lagos. 10c.

The said Abdulai Bakare Osho, also bought a property at No. 19 ldunshagbe Street, Lagos, for which he was given Land Certificate of measurement No. XVI dated August 24th 1892. 10d. The extent of Abdulai Bakare Oshos property including die land in dispute and in relation to the other adjoining properties were well and truly shown in the Crown Grant Sheets 1 of Alakoro section kept in the plan section of the Lagos Stale Land Registry.

13. The two children of Abdulai Bakare Osho that is Raji Bakare Osho and Muse Bakare Osho (alias Iseogbekun) took possession after the death of their father and built the brick house on the land in dispute in the presence of Sule Ajegun (alias Baba Musa) who was the brother of their mother Ayawo Ajegun.
14. That after the death of Ayawo and Akeresewu their son Abdulai Bakare Osho invited Sule Ajegun (alias Baba Muse) to live with him at 24, Onisemo Street. Lagos. After the death of Abdulai Bakare Osho. Sule Ajegun (alias Baba Muse) (sic) continued to live on the property with his wife
15. After Sule Ajegun (alias Baba Musa) left for No. 5 Tokosi Lane, Lagos the mud house in which he had been living at 24. Onisemo Street. Lagos collapsed and was not rebuilt for several years
16. Raji Bakare Osho thereafter appointed one Madam Shongobiyi a friend of his late brother Muse Bakare lseogbekun to be an overseer of the rents collected from the house.
17. The Defendants aver that after the death of Sule Ajegun, the plaintiffs mother, Madam Suwebatu Adufe, who was a friend of the said Madam Shongobiyi introduced to her a tenant who wanted to rent the garden and built corrugated iron sheets. With the consent of Raji Bakare lscogbckim, the garden was let to the tenant.
18. The 1st Defendants father Muibi Bakare Iseogbekun who was the son of Muse Bakare lseogbekun, was all the time living in his mothers at Ita Akanni but he came and joined his uncle Raji Bakare Iseogbekun at 24. Onisemo Street. Lagos. Muibi asked Madam Suwebatu Adufe for the ten years rent she collected, the latter threatened she would sec to it that he looses his only son that is the 1st Defendant if Muibi dared to raise the matter again.
19. The Defendants will contest at the trial of this case that no water rate was ever paid on the property 24. Onisemo Street, Lagos. The property was exempted from payment of rates through the influence of the grand father, father and uncle respectively, Musa Bakare Iseogbekun who was very popular as a driver.’ The 1st defendant gave the following pieces of evidence interalia:- “Esubi Bashua gave birth to Seliat, Seliat gave birth to Ayawa Ajegbo and Sule Ajegbe. Esubi lnem went to Chief Onisemo to ask for land for building. Onisemo now gave him a piece of land at side of his land where he built his place. Abdulai Osho was born on the land. Ayawo had 1 child by name Bakare Osho. Bakare Osho had 2 children, namely Raji Bakare Osho (2) Muse Bakare Osho. The 2 children were living on the land.

Later Musa died, leaving behind Raji. The land which we gave to Esubi was registered for Chief Bashua . This is a certified true copy of the Crown Grant of Obasa. My great grand father had been on the land since 1836, without any disturbance from anybody”.

Under cross-examination the witness testified as follows on the Crown Grant:- “The adjoining property to the land in dispute is No. 12 Bridge Street it belongs to Slli family. I have obtained the certified true copy of the Crown Grants granter (sic) to Alli family”.

The 4th – 6th defendants’ salient averments in their final statement of defence are:-

‘5. The land in dispute was originally owned by Odu who later became the first Chief Bashua Odu and who has his Iga at Idummoyinbo Street, Lagos

6. The said Chief Bashua Odu belonged to Ashogbon class of Chiefs of Lagos and all the land originally owned by the said Chief Bashua and his successors to the Chieftaicy were obtained from Aromire Chieftaincy by the Obas of Lagos who granted same land to him absolutely, without any incident of customary rights.
7. Defendants aver that most of the land were covered by Crown Grants obtained for the Bashua family otherwise Bashua Chieftancy family and the land No. 24, Onisemo street, Lagos the land in dispute is one of such land covered by the crown Grant issued to Obasua later on called Bashua
8. Defendants aver that under native customary law of Lagos, a Chieftaincy family consists of the blood descendants, the Arotas (liberated slaves), Domestics and Alabagbes.
9. Defendants also aver that a head of Arotas, domestics and Alabagbes can be appointed and when appointed he (sic) takes charge of all the properties of his overlord that is the family and his children and also takes charge of the living and overseeing of the other Arotas, domestics and the Alabagbes.
10. Defendants aver that during the life of Esubi, he was given these roles so much so that he was called Esubi Bashua instead of Esubi and he was the person who allotted No. 24 Onisemo Street, Lagos to occupants of members of the Bashua Chieftaincy family.
11. Defendants aver that it was in this way that the property at No. 24 Onisemo Street, Lagos were allocated to Esubis daughter with his (sic) husband to live upon as family house of Bashua Chieftaincy family.
12. Defendants aver that under native customary law of Lagos, a member of the family has the right of possession does not ripen to absolute ownership but right to possession.
13. Defendants aver that Esubi Bashua was an Arota of Bashua under Bashua Chieftaincy family and that he acted for the family in respect of all the lands of the family in which he allocated possession to members or otherwise and it has been adjudged that he held all these lands in-trust-for the family, a fact which has been confirmed in suits LD/522/83, and LD/973/86.
14. Defendants aver that Ajegun was not a blood relation of Bashua, married Seliyat one of the daughters of the said Esubi Bashua.
15. The said Ajegun and Seliyat were survived by two children, namely:
16. Ayawo Ajegun
17. Sule Ajegun.
18. Defendants aver that Suleand his brother was also given portion to live upon at 24 Onisemo Street, Lagos.
19. Defendants aver that it is customary to allow relations either near or distant to live together and it was because of this that plaintiffs mother came into the property and not because of acts of ownership’. Nurudeen Alabi Kekereekun, the 4th defendants testified interalia thus:

‘The plaintiffs and defendants are members of the Bashua Chieftaincy family who are entitled to the arota in the affairs of the family up to certain points.

The property which (sic) situate at No. 24 Onisemo Street belongs to Bashua Chieftaincy family. Neither plaintiffs or 1st to 3rd defendants are owner of the property in issue. The 2 parties in this action have no authority to claim the land as they are AROTA (slaves) under the native law custom.

The Bashua Chieftaincy family are Awori (yeuba). It was Esubi who allotted the property in the plaintiffs and the defendant.

The land in dispute is part of the landed property given to Bashua Chieftaincy family by Aromire Chieftaincy family’. As can be seen from the above pieces of evidence, each party traced their claim to the land to their ancestors. However one thing is clear, and that is that the plaintiffs and the original defendants are related. Another thing that is also clear is that the parties are in tendem on the property in dispute, which is 24, Onisemo Street, Lagos, even if there is confusion on the description of the site of the property, albeit whether it is on Bridge Street or Onisemo Street. Now, let me look at the tendered in the court of first instance, and some other exhibits admitted in evidence. In exhibits A which is the lease agreement tendered by the plaintiffs can be found the following in the second paragraph:

‘NOW, THIS DEED WITNESSETH that in considertion of the Rents and the covenants herein after reserved and contained the lessor doth hereby demise unto the lessee ALL THAT piece or parcel of land with the building thereon situate, lying and NEAR Bridge PAGE| 14 Street, Lagos Nigeria.

SC. 93/2003