Alhaji Sanni Shaibu V. J.o. Bakare (1984)
LawGlobal-Hub Lead Judgment Report
This appeal arose from the decision of the Court of Appeal, dismissing the appeal of the defendant against the judgment of Beckley J., sitting in the High Court of Lagos State, at Ikeja. On the 18th day of November, 1977, he gave judgment in favour of the plaintiff for declaration that he is the owner under Yoruba native law and custom to the piece of land at Ipaja Road, Ikeja and more particularly described on a plan No. W.406/61 marked by four boundary pillars Nos. 1535, XR.1533, XR.1534 and A.220. In addition, he awarded N50 damages for trespass, and an order of injunction with N500 costs.
The defendant (hereinafter described as the appellant) appealed to the Court of Appeal, which on the 18th June, 1981, by a majority decision (Ademola and Kutigi JJ.C.A., Mohammed J.C.A. dissenting) dismissed the appeal and affirmed the decision of the trial court. Not satisfied with the majority decision, he has further appealed to this Court.
Chief Williams, S.A.N., for the appellant, was granted leave to substitute three new grounds of appeal for the six original grounds.
The two grounds which he argued, read as follows:
“(1) The Federal Court of Appeal erred in law and on the facts in failing to observe that the plaintiff has failed to prove the title pleaded by him in his statement of claim.
Particulars of Error
(a) there is no satisfactory evidence that the distribution of the real estate of Jacob Sanni Bakare was carried out with the consent of all his children; in any event the evidence of the plaintiff on this point though supported by exhibit 7, was contradicted by P. W. 4 who said that it was the executors of J.S. Bakare who carried out the distribution;
(b) the allegation in the statement of claim that a portion of the land of Jacob Sanni Bakare was given to the plaintiff and his brother (J.A. Bakare) though supported by the evidence of the plaintiff, was contradicted by the evidence of the only brother of the plaintiff who gave evidence Emmanuel Oladipo Bakare (P.w.4);
(c) Exhibits 1 and 2 tendered by the plaintiff himself show that title to the entire real estate of J.S. Bakare was vested in the personal representatives of his last surviving executor or trustee and accordingly the plaintiff’s claim to be owners of the land in dispute ought to have failed;
(d) the evidence of the plaintiff that he was permitted by his brother, J.A. Bakare, to use the plot in dispute for his own purposes was not pleaded and went to no issue and ought to have been ignored by the courts below.
(2) The Federal Court of Appeal erred in law in granting the plaintiff’s claim for declaration of title or damages for trespass or injunction.
Particulars of Error
(a) On the evidence put before the court by the plaintiff it is clear that he has failed to prove that he has received a conveyance or vesting assent from the executors of J.S. Bakare or from the personal representatives of his last surviving executor.
(b) It follows that the plaintiff has no title or right to exclusive possession over any portion of the real estate of the late J.S. Bakare.
(c) In the premises all the claims in this action ought to have been dismissed.”
No argument was advanced in the brief and before this Court on the third ground, which is the general ground on the findings of fact.
In order to appreciate the argument put forward by the appellant, it is necessary to refer to the pleadings of the plaintiff (hereinafter described as the respondent). Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the statement of claim, which are relevant, read:
“3. The land in dispute forms portion of large parcel of land conveyed to one Jacob Sanni Bakare, late of 29 Abeokuta Road, Agege under and by virtue of a deed of conveyance dated the 21st day of September, 1944 and registered as No. 50 at page 50 in Volume 657 of the Register of Deeds kept at the Lands Registry, Lagos.
- The said Jacob Sanni Bakare died at Agege on the 22nd day of December, 1952, leaving him surviving 8 children one of whom is the present plaintiff.
- The plaintiff says that his father exercised maximum act (sic) of ownership and possession by building a family house on the parcel of land portion of which land is the parcel of land in dispute.
- The plaintiff further says that after his father’s death, his properties were distributed amongst his children under native law and custom, that the land in dispute was given to him and his brother J.A. Bakare.
- The plaintiff says that by an arrangement between him and his brother, he was permitted to use the land for his own purpose and accordingly he submitted and got an approved building plan in respect of the land in dispute.
- The plaintiff further says that his family received compensation for portion of the land bought by their father in 1944 when the government acquired the said portion sometimes (sic) ago.
- The plaintiff avers that his family sold portion of their father’s land to Mr. Dania, Messrs Oseni and Layiwola and Alhaji Dankani who have built houses on the portions sold to them.
- The plaintiff says that when he found the defendant sometimes (sic) in 1973, trespassing on the land in dispute, he protested, and warned him verbally to desist from his acts of trespass.”
On the other hand, the defence pleaded in paragraphs 2, 3, 4 and 5 as follow:
“2. The defendant is not in a position to deny or admit paragraphs 7 and 9 of the statement of claim and puts the plaintiff to the strictest proof thereof.
- The defendant is the freehold owner of the parcel of land claimed by him along Agege Bye-Pass, Agege by virtue of a deed of conveyance dated 16th August 1974 and registered as No.2 at page 2 of volume 1465 of the Lagos Land Register.
- All land in the area including the portion claimed by the defendant was vested in the Olabua Ohunfa Otapo family as original owners from time immemorial.
- The defendant’s predecessors in title remained in effective possession of all their land including defendant’s land exercising maximum acts of ownership thereof farming, leasing and selling portions thereof for several years without let or hindrance.”
At the trial, the plaintiff gave evidence in line with his pleading; how his late father bought the land in 1944 from the accredited representatives of Otapo family, who later executed in his favour, a deed of conveyance dated 21st day of September, 1944. Evidence was also adduced to the effect that his father took possession of the land, built a house on it, sold portions thereof during his life time and planted a grapefruit tree which was still standing there.
His father J.S. Bakare, died on the 22nd day of December, 1952 leaving a will which was proved by the two executors named therein, who have since died. He was survived by eight children on whom his properties devolved according to Yoruba native law and custom. One of the plaintiff’s witness was Emmanuel Oladipo Bakare, a pensioner and one of the eight surviving children of J. S. Bakare. He testified how his late father bought the land and of the various acts of ownership which he exercised on it after purchasing it, and of his own acts, after the death of their father. For example, he testified to selling part of the land to one Alhaji Dawuani, who built a house on the land adjourning the parcel of land in dispute.
The plaintiff in the course of his testimony tendered probate and the will of his late father, Jacob Sanni Bakare, (exhibit 1 and 2) which were received in evidence without objection. It will be observed that these two documents were never pleaded as they ought to if they were to be relied upon by the plaintiff in proof of his title. Since they were not pleaded, the trial judge should, and in fact rightly, ignore them as they went to no issue which had to be tried in the proceedings. The issue was a straight fight between the title of J.S. Bakare, deceased, and that of his vendor’s family, the Otapo family. The issue then is whether the plaintiff proved to the satisfaction of the trial court that the Otapo family had divested itself of its title at the time of the alleged grant to the defendant in 1974. If the Otapo family had effectively divested itself of its title, it had nothing more to grant to the defendant.
In Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 All N.L.A. (Pt. 1) 207, the point arose whether the trial judge was right in rejecting a deed which was not pleaded, but referred to in a pleaded document. At page 216, the Supreme Court said:
“We are of opinion that the reason which was given by the learned trial judge in rejecting the conveyance when he held that it was irrelevant to the issue under inquiry by him was cogent and unassailable. It was unanswerable. On the facts and circumstances of this case the document was completely irrelevant to the issue in controversy between the parties. It was therefore inadmissible since the purpose for seeking to tender it in evidence was not to establish that the plaintiff was not illiterate. The contention of the learned counsel for the defendants on this point is therefore untenable. The Western State Court of Appeal was in error in ruling that the document was relevant and admissible.” See also Lemomu v. Ali Balogun (1975) 1 All N.L.A. 30.
The issue posed for trial as settled in the pleadings was whether the Otapo family had any title to the land in dispute, in 1974, when it purported to convey portion of the land previously sold by the family to the appellant, for if as at that time it had no further right or title, then it had no title to grant the appellant. In other words, did the respondent prove that his late father succeeded to the title of the Otapo family The trial judge accepted as true the evidence given by the respondent how his father bought the land in 1944 and in the same year obtained a conveyance of the land (Exh. 4) from members of the Otapo family, represented by Dada Oya, Ogunsanrin and Alimi Otapo. The original purchase receipt (Exh. 3) was also received in evidence. The trial court found as a fact that respondent’s father took possession of the land after he bought it and exercised various acts of ownership.
In fact, there is no appeal against these findings. It is difficult to see how appellant could have attacked these findings as his own witness (D.W.1), Lamidi Afunku, in his evidence-in- chief said:
“I know the father of the plaintiff Jacob Sanni Bakare. Jacob Sanni Bakare bought a portion of land from our family. It was a long time ago. It would be around 1930. When he first bought the land there was no conveyance.”
It was shown, and the court found, that the land in dispute was part of the land which was sold by the Otapo family to Bakare, the father of the respondent. Further, it was found that the children of Bakare succeeded to the property after his death and exercised various acts of ownership over it after his death. The Otapo family having divested itself of its title to the land had nothing further to grant or convey to the appellant.
Chief Williams has argued that the title of the respondent was defective in that since Jacob Sanni Bakare died testate and probate of his will was granted to the executors, the property devolved on them as trustees of the estate and only they could grant plaintiff or any of the children possession of the land. He referred to section 46 of the Administration of Estate, Law (Lagos State), which provides that the personal representative may permit any beneficiary to have possession before executing deed of assent. I have already expressed the view that the argument is irrelevant, since that was not an issue before the trial court. The trial court in my view was right to have taken no cognisance of the will and probate, since neither of the two parties pleaded them or even relied on them for their title to the land.
The next point argued by Chief Williams, is that the trial court gave judgment declaring title for the respondent under native law and custom, when the title of Jacob Sanni Bakare was in fee simple. This, he argued, was because the land was conveyed in fee simple to him (J. S. Bakare) by a deed. In other words, the title under native law and custom which the Otapo family had was transformed into a fee simple interest by virtue of the deed. For that reason, a declaration under native law and custom was inappropriate. I am unable to appreciate the relevance of the distinction which learned counsel was urging upon the Court. First, the respondent claimed “declaration of title in fee simple or under Yoruba native law and custom…”
The respondent had not yet received any deed of conveyance himself. After the death of his father, (excluding the will and probate which was never pleaded) the property devolved on his children according to Yoruba native law and custom. See Kareem v. Ogunde (1972) 1 All N.L.A. 72 p.80 where this Court stated:
”The law reports are replete with cases which establish firmly the entitlement of a Yoruba person’s children to succeed in Lagos to his property on his death intestate and the locus classicus is the case of Lewis v. Bankole (1908) 1 N.L.A. 81, where at p.105 Osborne C.J. observed as follows-
‘The first claim of the plaintiffs was for a declaration that they are entitled as grandchildren of Mabinuori deceased in conjunction with the defendants to their family compound ….. Though I am unable to make a declaration in the exact terms asked by the plaintiffs in the first part of their claim, I have endeavoured above to indicate what I consider to be the rights given by customary native law to the plaintiffs, as members of the family with respect to the family compound, which I declare to be the property of the family of Mabinuori deceased.’
See also Miller Bros. v. Abudu Ayeni etc. (1924) 5 N.L.A. 42 (Van Der Meulan J.); Caulcrick v. Elizabeth Harding and Anor. (1926) 7 N.L.A. 48 (Tew J.); Catherine Mary Sogunro-Davies v. Disu Sogunro and Ors. (1929) 9 N.L.A. 79 (Berkeley J.); Ebun Ogunmefun v Oluremi Ogunmefun and Ors. (1931) 10 N.L.A. 82 (Webber J.). The evidence given by the plaintiffs in this case was more than sufficient to support their claim to entitlement and the learned trial judge was wrong to have ruled against them on this point”.
As to the argument whether the estate granted to J.B. Bakare was a fee simple title and not a title under native law and custom, I am unable to see the relevance of the argument. In Kabiawu v. Lawal (1965) 1 All N.L.A. 329 at page 335, this Court per Coker, J.S.C., stated:
“The appellant had claimed a declaration of title under native law and custom and had clearly established such a title. It is true that a great deal of confusion had been introduced into this matter by the conveyance exhibit C which had purported to convey to Abdulai Jinadu Kabiawu an estate in fee simple. But it is clear that the conveyance never recited that Oseni Falade had a fee simple and there is no dispute that an owner of land under native law and custom can transfer his absolute interest and describe the entirety of such interests as conveyed by him as an estate in fee simple. See per Berkeley, J., in Balogun etc., v Saka Chief Oshodi (1931) 10 N.L.A. 36 at pp. 47 and 48, and also Privy Council in Oshodi v. Balogun and Others (1936) 4 W.A.C.A. 1 at p.2; see also Griffin v. Talabi (1948) 12 W.A.C.A. 371. It is manifest that Oseni Falade and Arinola by exhibit C could and did transfer only the entirety of the interests which they themselves possessed in the land. The appellant is therefore entitled to the declaration which he claimed.” See also Brigbo & 9 Ors. v. Eyin Pessu & Anor. (1974) 1 All N.L.R. (Pt. 2) 20 p.47.
The Court found respondent was in possession of the land when the appellant entered. At the time he trespassed, he had no title, even the so called deed of conveyance was valueless since his grantors had nothing left to grant – Nemo dat quod non habet – a purchaser can never get what his vendor himself did not possess; See Lasisi & Anor. v. Tubu & Anor (1974) 1 All N.L.R., (Pt. 2) 440 p.444. As between the two parties, the respondent, obviously, had a better title than the appellant who had none. The trial judge was right to take judicial notice of the Yoruba native law and custom in Lagos, and, the effect of distribution of the property amongst the children of Bakare, and the subsequent agreement between respondent and his brother. These facts as found by the trial judge clothed him with sufficient title as against the appellant, a complete stranger to the estate of Bakare, deceased. It is necessary to observe that the declaration granted is binding only between the parties and those who identified themselves in their battle of ownership. It is not binding on those who are not parties or who never lent support to any of them. As it is generally said, a judgment for declaration of title is not a judgment in rem. The declaration granted in this judgment binds only the parties and their privies. As a decision inter parties, it operates as an estoppel, in favour of, and against, parties and privies only, not third parties or strangers. See Duchess of Kingston’s case (1776) 2 Smith Leading Cases (13th Edn.) 644 per De Grey, C.J. at pp.644-645; Gray v. Lewis (1873) Ch. App. 1035 per Mellish L.J. at pp.1059, 1060;” it unquestionably is not the general rule of law that a judgment obtained by B, is conclusive in an action by B against C. On the contrary, the rule of law is otherwise – a judgment inter parties is conclusive only between the parties and those claiming under them.
The point was made that whereas paragraphs 7 and 8 of the statement of claim averred that the land was distributed amongst the children of J.S. Bakare, after his death, and plaintiff gave evidence in line with what he pleaded, his brother, Emmanuel Oladipo Bakare (P.w.4) testified that the land was allocated to the plaintiff by the executors of their father. It was then argued that in view of the contradiction, he was not entitled to the declaration sought in the court. I do not think the argument is sound. For the trial judge in rejecting the argument said the point was irrelevant to the issue before him as it was not raised in the pleadings. He further accepted, as he was entitled to do, the evidence of the plaintiff, as opposed to that of P.W.4, in its entirety, in arriving at his decision. Whether the children distributed amongst themselves or the executors did, the fact remains that the plaintiff was claiming the title of his late father, and none of those concerned with his estate was opposed to his claim.
None of the two executors, who were already dead, or any beneficiary of the estate of the late father, is a party to the proceedings and their interest if any, remains unaffected by the judgment. I am unable to see how the manner in which the respondent derived title to part of the estate could be the concern of the appellant, who is a complete stranger to the estate. It could have been otherwise, if the appellant was deriving title through the same estate of J.S. Bakare. Then and only then, would their respective titles be a material issue. Before concluding my judgment, I wish to observe that even if I had accepted the submission of Chief Williams that the evidence disclosed that the title of J.S. Bakare, a fortiori, the respondent, was in fee simple and not under native law and custom, I would have adopted the course which the Supreme Court took by amending the judgment awarding respondent the correct title he was entitled by the evidence. See Brigbo and Others v. Eyin Pessu & Ors. (1974)1 All N.L.A. at page 46. In the case, the plaintiff had claimed a declaration of “possessory title”; the court said:
“It is conceded in effect by the appellants themselves that the learned trial judge would have been justified in granting to the plaintiffs a declaration of title under native law and custom simpliciter. In Jemi Alade v. Aborishade (1960) F.S.C.167, the Federal Supreme Court decided in effect that a court, indeed a High Court, is entitled to grant to a plaintiff the type of title which by his evidence he has proved in awarding him a declaration.
In the case in hand, the plaintiffs by their amended writ claimed a declaration of title simpliciter. If they had in those circumstances, as indeed that was the case here, established a particular type of title, then the learned trial judge would have been entitled so to characterise the title which he had declared in their favour. We are in no doubt whatsoever that the plaintiffs in the court below did establish their claim to a declaration of title under native law and custom. They should have got that…”
In this case, the trial court awarded plaintiff title under native law and custom. In my view, the trial court was right. The claim before the trial court was in the alternative, declaration of title in fee simple or in accordance with native law and custom.
In the final result, as I find no merit in this appeal, I would dismiss the appeal with costs fixed at N300 to the respondent. The judgment of Beckley J. is hereby further affirmed.
BELLO, J.S.C.: I had a preview of the judgment delivered by my learned brother, Coker, J.S.C. For the reasons so ably stated in the judgment, the decision of the Court of Appeal cannot be faulted. The findings of the learned trial judge, which was confirmed by the Court of Appeal, is unimpeachable. The Otapo family had sold the land in dispute to the late Bakare in 1944 and upon his death in 1952 his children including the respondent succeeded to his estate including the land in dispute. Having divested itself of the land since 1944, the Otapo family could not thereafter confer any title to the land in the appellant by the purported sale to him in 1974. In effect, the appellant bought nothing and his entry onto the land constituted trespass.
The appeal is accordingly dismissed with N300 costs to the respondent.