Ogberejeko Ogboou V Eriyota Oogha And Another (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant who was the defendant in an action in the High Court, Warri, Mid-West Nigeria has appealed against the judgement of that Court awarding against him in favour of the respondents damages in the sum of £25 and an injunction restraining him, his servants and/or agents from trespassing on the plaintiffs farmland. The farmland is, according to the plaintiffs, situate to the east of Ovbori village in Aghara Clan in the central Urhobo district of the Delta Area and shown edged purple in the plan produced by them and admitted in evidence as exhibit P1. The defendant also produced a plan admitted as exhibit D1. According to him, the land in dispute is part of land called by him Uveghegemu. Of the four grounds of appeal filed on behalf of the defendant only two were argued and the others  were abandoned. One of the grounds argued was that the judgement was against the weight of the evidence given in the case. The argument in this connection needs no further comment as we are satisfied that the judgement is sufficiently supported by the evidence properly accepted by the learned trial judge.

The other ground of appeal argued is as follows:-

‘4. That the trial judge erred in law when he, after the close of the case for the plaintiffs and defence, and after counsels closing speeches had been taken, called on the plaintiffs surveyor to submit a new plan which was tendered in evidence.’

It is not in dispute that after counsel for both parties had addressed the court at the conclusion of the hearing the judge stated that although the plans tendered by the parties were said to be made on the same scale, yet they showed different positions of the land in dispute, and that he was not satisfied with the plans produced by both parties, and ordered that the plaintiffs surveyor should go on the land ‘armed with defendants plan exhibit D1 and show on his own plan exhibit P 1-

(a) the exact position of the land which the plaintiffs claim as being trespassed upon vis-a-vis the land which the defendant claims as his land edged red in exhibit D1; and

(b) the exact position of the Okpara Road which the defendant has shown in his plan exhibit 01 but which the plaintiffs have not shown on their plan exhibit P1.’

A plan showing these features as on the plaintiffs plan was thereafter prepared and produced in evidence as exhibit P2 by the plaintiffs surveyor who was thereafter cross-examined on it by defendants counsel. The cross-examination established that the features now reflected on exhibit P2 corresponded with their counterparts in the defendants plan exhibit D1.

Before us it was contended that the judge was not entitled to ask the plaintiffs surveyor to produce this further evidence, that the action of the judge was tantamount to helping the plaintiffs to make out a case which they should be held to have failed to prove and that the plaintiffs case should have been dismissed if their plan did not support their case. On behalf of the plaintiffs it was submitted that the course adopted by the judge was not improper, that the cross-examination of the plaintiffs survey or on recall merely confirmed what was already properly in evidence before the court, and that such recall was necessary in the interest of justice.

The case itself is not simple on the facts. The action was for trespass by the defendant to a portion edged brown to the north-west of the area edged purple in exhibit P1. The defendant did not dispute the entry on the land but stated that the entire land claimed by the plaintiffs including the area of trespass was included within a very much larger piece of land belonging to himself and his family. He showed his land edged green on his plan exhibit D1 and sited the area of trespass on the extreme south edging it pink or red. On both plans the Oghreja stream is shown as the south-east boundary of the land claimed by the plaintiffs. Within the pink area and within its north, western and south-western boundaries the defendant had included lands claimed by the plaintiffs to belong to their own boundary men whom also they called as their witnesses. The plaintiffs did not join issue with the defendant in respect of the rest of the land within the green area in exhibit D1 and so the vital issue in the case was whether or not the plaintiffs boundarymen were actually in possession of the lands to the north, west, and south-west of the purple area in exhibit P1. If this were so it will establish the improbability of the story of the defendant, who admitted that his own village of Edjekemevo was about a mile away to the north-east of the land in dispute, since he would have had to pass through the lands of the plaintiffs boundarymen on the north, west and south-west to come into the land in dispute.

After the close of the case of the plaintiffs and before the defence opened, counsel for the defendant had put in evidence the defendants plan as exhibit D1, without calling his surveyor whom he stated was then ill. Counsel for the plaintiffs agreed to the production of the plan in this way as long as that course did not involve an acceptance by the plaintiffsthat the plan was accurate. After the defendant and three witnesses were called and before the case for the defence was closed, the judge observed as follows:-

‘Although the plan of the defendant exhibit Dl has been admitted in evidence by consent. there has arisen in course of the evidence for the defendant some discrepancies as to description, names of places, etc. on the plan prepared by his surveyor Mr John. I therefore agreed with the consent of counsel for the plaintiff to allow the surveyor to be called to give evidence.’

In pursuance of this order the defendants surveyor was called and in the course of his evidence he stated that the western boundary of the pink area in exhibit D1 was not the same as the western boundary of the purple area in the plaintiffs plan exhibit P1.

Now it is obvious that the plan exhibit P2 merely resolved the confusion which had been created by the difference in the location of the western boundary of the land in dispute on exhibits P1 and D1 and that plan reflected before the court that which was implicit in the evidence already given by the parties in the case. Quite apart from the provisions of Order 35, rule 1 of the Western Nigeria High Court Rules (which then applied) it cannot be disputed that a judge has got a discretion to recall a witness in the interest of justice in order to explain or confirm a point on which evidence has been given but which requires some elucidation. The point arose before the Court of Appeal as to the stage of the proceedings at which the judge was entitled to exercise this discretion; this was the case of Bigsby v. Dickinson (1876) 4 Ch. D 24 and at p. 28 James, L.J. observed as follows:-

‘And at no period of a cause is it too late to shew that confusion and error have arisen from two persons, or two plans, or two things passing by the same name, and more especially to shew that through such confusion the court had been deceived by a misleading experiment performed in its own presence.

Undoubtedly the discretion to recall a witness by a judge is one which should be exercised with great care regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties; but it will be as wrong to say that a judge has an unfettered discretion to call or recall a witness in civil proceedings at any stage of the trial as to say that he has no right to recall a witness at any stage of the proceedings even when in the interest of justice he was obviously obliged to do so in order to clarify a point of evidence which had arisen in the proceedings before him and the implications of which are well within the knowledge of both parties to the litigation.

We have already referred to the circumstances under which the judge in this case exercised his discretion to recall the plaintiffs surveyor, and viewed in the light of those circumstances the argument of counsel for the defendant must fail.

We see nothing improper in the exercise by the judge in the present circumstances of a discretion which he undoubtedly possessed and we cannot accede to the submission of counsel that the judge was wrong in taking the course which he did. This ground of appeal also fails.

Other Citation: (1967) LCN/1478(SC)

Alhaji R.A. Afolabi (Trading As Ifelodun Bros). V Polymera Industries (Nig.) (1967)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J.

The appellant, a Storekeeper employed by Messrs. G. B. Ollivant (Nigeria) Ltd. at their Shell Depot in Ibadan, was convicted by the Chief Magistrate Ibadan on all the twelve counts on which he was charged with stealing specific items of goods the property of his employer. This conviction was upheld on appeal to the High Court, against which Judgment the appellant has filed eight grounds of appeal in addition to the two contained in the Notice of Appeal. In arguing these grounds of appeal learned Counsel urged that:-

1. The learned Judge on appeal misdirected himself in upholding the judgment of the trial Magistrate convicting the appellant of stealing twelve items out of the twenty-three shown on Exhibit “A” when there was no evidence before the Court as to which of these items were normal shortages and which the appellant sold and converted to his own use.

2. The learned Judge on appeal erred in upholding the Judgment of the trial Magistrate convicting the appellant when material witnesses, like the appellant’s assistants and labourers were not called and important documents like waybills for inter-depot transfers, and invoices, were not tendered in evidence.

3.The learned Judge on appeal was wrong in law in his decision, having regard to the decision in Waziri Chingi v. The Queen F.S.C. 137/1958

4. The learned Judge on appeal misdirected himself by non direction on the effect of s. 386 of the Criminal Code with regard to the evidence before him.

The trial Magistrate, after reviewing the evidence for the Prosecution and the Defence, went on to say that:-

I am quite satisfied that the evidence for the prosecution is true and I accept it. I am quite satisfied that the accused told the Prosecution Witness 1 that he sold the stock, which he had no right to do, and used the money for his election expenses. This evidence is supported by that of Prosecution Witness 2. The Prosecution Witness 1 does not seem even interested in the prosecu-tion of the accused, and I can find no reason why he should have lied against the accused as the accused has suggested.

The trial Magistrate then went on to deal with other evidence led by the Crown as to the action of the appellant before and at the time his stock was checked and found that such action was meant to deceive. On appeal the fol-lowing passage in the judgment of the learned Judge on appeal shows the im-portance he himself placed on the alleged admission made by the appellant; it reads thus:-

It is my view that having regard to the evidence and the admission alleged to have been made by the appellant to the Man-ager and to the 2nd Prosecution witness, the learned trial Magis-trate was justified in coming to the conclusion that larceny of the items contained in the charges was proved.

and a little lower down in the judgment that:-

It is my view that as the appellant admitted that he had sold some of the stock and used the proceeds for his election expenses, there was no necessity to have called any of the assistants and labourers to give evidence for the prosecution.

We have considered the point, which is important, in our view, of the effect of the admission made by the appellant who was charged with stealing not all the twenty-three items in Exhibit ‘A’, but only twelve out of the twenty-three. On this point the 1st Prosecution Witness says:-

As a result, I called for the accused and enquired from him how the shortage in his stock had occurred. The accused told me that he had been busy with his Election Campaign, and that he had taken certain of the Shell stock, and sold them to assist in his expenses. The accused did not say how much he used.

The evidence of the 2nd Prosecution Witness when questioned by the Court reads thus:-

Q.    How many items on Exhibit ‘A’?

A.    There are 23 items on Exhibit ‘A’

Q.    Which of these items would you say are normal shortages?

A.    I cannot say which of the items are normal shortages.

Q.    Which of these items did the accused say he sold and used the money for Election Expenses?

A.    The accused did not specify which of the items he said he sold and converted the funds to his own use.

It is difficult to understand how such reliance could have been placed on this alleged admission of the appellant in view of these answers elicited from specific questions put by the Chief Magistrate himself to this witness. We assume that both the Chief Magistrate and the learned Judge on appeal were using the word “admission” as synonymous with the word “confession”, and it is in this respect that Waziri Chingi v. The Queen, F.S.C. 137/1958 (Supra), is pertinent.

The relevant passage reads as follows:–

The point was aptly put in the case R. v. Sykes 8 C.A. R. 233, at p. 236, in the summing up to the jury, as follows:–

‘A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?

One cannot but come to the conclusion that this alleged confession fails in all respects to satisfy the requirements of what a confession should be. In the first place it is neither direct nor positive as far as the twelve items, with which he was charged, were concerned. In the second place, the evidence of the 2nd Prosecution Witness would seem to negative the possibility of its truth. Such evidence reads thus:-

I did some checking during November, 1959, but there was no shortage. I did not do the normal monthly checking at the end of November, 1959. It was done by Mr. Adams . There was spot checking by me between 15th and 25th December 1959. I discovered no shortage then.

These articles are said to have been stolen during the month of December, 1959. The alleged admission or confession states that the appellant admits selling goods and using the proceeds for electioneering campaigns. The elections were admittedly held on the 12th December and yet at the end of November when a check was made by Mr. Adams, who was never called to give evidence, there is nothing to show that there was shortage; further, a spot check held even some 3 to 12 days after elections did not disclose any shortage. Mr. Eboh for the Crown has endeavoured to argue that a “spot check” may not disclose shortages, but there is nothing on record as to the effect of a “spot check” and the statement of Counsel on appeal would not supply that deficiency. Again, as in Waziri Chingi v. The Queen, (supra) the alleged confession in the present appeal was retracted; further, there was evidence by the defence about how the election expenses were paid for, which, if accepted, would cast doubt as to the truth of the making of the alleged confession. It is true that the trial Magistrate said he was unable to rely on this evidence, but in our view had he taken into consideration all the matters above related, we are not in a position to say he would have come to this same view about the evidence for the defence.

There is no need for us to go into the merits or otherwise of the other grounds of appeal, for without this alleged confession the conviction cannot be supported. For these reasons this appeal must succeed and the conviction of the appellant is set aside, as is the sentence, and verdict of acquittal is entered in their place.

Other Citation: (1967) LCN/1477(SC)

Henry B. Phillips V Joseph Ogundipe (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

Henry Babalola Phillips was the plaintiff in an action he instituted in the Lagos High Court against Joseph Oloyinloye Ogundipe and in which he claimed:-

“1. Declaration of title in fee simple of all that parcel or piece of land which forms part of No. 86 Agege Motor Road, Idioro covered by conveyance dated the 7th day of June, 1920 and Registered as No. 58 at page 179, in Volume 138 in the Land Registry in Lagos.

2. Rectification of all entries in the register of titles in relation to the said land.

3. The sum of £100 as damages for trespass committed by the defendant on the said land belonging to the plaintiff and in his possession.

4. A perpetual injunction restraining the defendant, by himself, by his servants or agents or otherwise from continuing or repeating further acts of trespass on the said land.”

Pleadings were ordered and after their delivery it became obvious that the complaint of the plaintiff was against the registration and entry of the name of the defendant, pursuant to the provisions of the Registration of Titles Act, cap. 181 as the registered proprietor of the fee simple estate in the land in dispute. The land itself is stated to be situate along the Agege Motor Road in the Idioro district of the mainland of Lagos. Both by his pleadings and the evidence given on his behalf the plaintiff claimed to have derived title to the land in dispute by series of conveyances of which the first was dated the 28th May, 1920; and also to have exercised exclusive acts of possession on the land since he purchased is on the 7th June, 1920. There was evidence from the caretaker whom he had placed on the land that whilst he was in possession on the 21 at August, 1965, the defendant forcibly entered on the land with some quantity of building materials and commenced building operations thereon. It was also part of the case of the plaintiff that without his knowledge and consent the defendant had been registered under the Registration of Tides Act as the owner of the freehold interest in the land in dispute under Title No. M03718.

The defence of the defendant was simple. He had purchased the land from one Michael Alatishe and had secured the entry of his own name on the register as a transferee from him of his freehold interest in the land and he based his right to enter on the land on this fact.

In a reserved judgment, Lambo, J., non-suited the plaintiff’s case with costs observing as follows:-

“From this it is plain that the court is unable to decide whether or not the land upon which the plaintiff’s claim is based is the same land described in defendant’s Land Certificate of Title No. M03718.

In the circumstances the plaintiff’s claim will be non suited. The effect of this judgment however, is that the plaintiff will be able hereafter to have a second bite at the cherry.”

The plaintiff has appealed against this order. He will hereafter in this judgment, as before, be referred to as the plaintiff. The defendant has also appealed against the order of non suit. There is therefore both an appeal and a cross-appeal but the defendant will hereafter, as before, in the judgment be referred to as the defendant. At the beginning of the appeal, learned counsel for the defendant indicated that he agreed with the plaintiff’s counsel that the evidence did establish that the land being claimed by both parties was the same. It is clear therefore that the ground on which the order of non-suit was based by the judge is not acceptable to either side. In this connection we observe that neither party was invited to argue the question of non-suit and it is little surprising that the order was unsupported by either party in this Court. An order of non-suit, admittedly a discretionary one, should be employed rather sparingly and only in cases in which such an order is clearly justified by the circumstances.

Besides, such an order should not be made when counsel on either side has not requested it, and counsel on both sides have not been invited to address the court on the propriety of adopting such a course. In Craig v. Craig (1967) N.M.L.R. 52 at p.55 this Court observed as follows:-

“It seemed to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and others and Dawodu v. Gomez. We mean no disrespect when we say that those cases do not solve the question before us since each case must be considered in the light of its own facts.

Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.”

We think it is apt to repeat these observations in the present case and if counsel had been requested to address the court on the issue of non-suit in the present case, some further expense or litigation might have been obviated.

We wish also to observe that the plaintiff had cited two other persons as respondents in his notice of appeal, i.e. (1) Michael Alatishe, and (2) The Nigeria Building Society. With regard to Alatishe, the case of the defendant was that he was his vendor and that he executed on his behalf an instrument of transfer purporting to vest the land in the defendant. With regard to the Nigeria Building Society, it appears that the appellation was another name for the Nigeria Housing Development Society Limited whose name appears on the Charge Certificate tendered during the hearing and admitted as exhibit N. This is an incorporated body which had granted loan to the defendant on the security of the lands in dispute. It was reported at the hearing of the appeal, and we are satisfied, that the two persons cited were duly served with the necessary notices. They were neither present nor represented and the appeal proceeded in their absence.

Before us on appeal the main point canvassed on behalf of the plaintiff was that the purported transfer of the land to the defendant is null and void. The story of the registration of the transfer is told by the several exhibits produced at the trial. That story is not in dispute and is as follows:- Michael Natishe had purchased the land from the Tinubu family, who had given him a conveyance dated the 10th June, 1963 In which they were described as the original owners of the land. We were not told whether the area in which the land is situate was a compulsory registration area or voluntary registration area under the Registration of Titles Act, but the facts of the case suggest that registration of title in the area was merely voluntary. On the 12th July, 1963, Alatishe executed an instrument of transfer of the land in favour of the defendant. The instrument was in Form No. 7 in the First Schedule to the Registration of Titles Act and reads as follows:-

“District: Surulere       Application Number 807/63

Title No. M03718

Property: Land near 84 Agege Motor Road, Idi Oro. day of; 12th July, 1963, in consideration of four hundred and fifty pounds (£450) I, Michael Adeniran Alatishe, Trader of No. 45 Haastrup Street, Surulere, by this deed hereby transfer to Joseph Oyinloye Ogundipe, Trader of No. 22 Idumagbo Avenue, Lagos, Nigeria in fee simple the land comprised in the above-mentioned title. And I, the said Joseph Oyinloye Ogundipe, Trader, hereby apply to be registered as owner of the said land.”

Later and on the 7th August, 1963, Alatishe signed an application for first registration of his title to the land and lodged that application with the registrar of titles on the same day. The instrument of transfer executed in favour of the defendant on the 12th July, 1963, was also lodged with the registrar on the 7th August, 1963. There is no evidence as to what happened to both applications since the lodgment but it appears that on the 29th November, 1965, the certificate of title was issued with the name of Alatishe shown therein as the registered proprietor of the freehold title to the land. It was also stated on the certificate that on the 2nd August, 1965, by virtue of the instrument of transfer dated the 12th July, 1963, the defendant was registered as the present proprietor.

Learned counsel for the plaintiff contended that the transfer was purportedly made under the provisions of section 28 of the Registration of Titles Act and that inasmuch as the provisions of that section were not satisfied, the transfer was null and void and inoperative. Section 28 so far as it is material to this case provides as follows:-

“28(1) The registered owner of any land or charge may in the prescribed manner transfer such land or charge or any part thereof.

(2) The transfer shall be completed by registration of the transferee as owner of the land or charge transferred, and filing the transfer in the registry; but until such registration the transferor shall remain the registered owner of the land or charge.”

Counsel argued that at the time of execution of the instrument of transfer, Alatishe was not the registered owner of the land and also that on the wording of the instrument of transfer he could not have transferred any land “comprised in the above- mentioned title” since no title had been registered in his own name at that time. We do not consider the argument about the wording of the Form of any real assistance in this case. The Registration of Titles Act does not create a new type of land- tenure. The nature of the interest transferred is described as the fee simple and what follows after this seems to us to be no more than a description of the land for the purposes of conveyancing.

The argument on section 28(1) is, in our view however well-founded. Alatishe had not even applied for registration of his own title to the land when he executed the instrument of transfer, much less having been registered as the owner for purposes of first registration.

It was contended by counsel for the defendant, firstly that ’the registered owner’ in section 28(1) must be read as including “a person who has applied to be registered as the owner of the land”; and, secondly, that the relevant transactions did not take effect until the completion of the registration of the title of Alatishe on the 31st July, 1965. Concerning the first submission, reliance was placed on the case of Lever Finance Ltd. v. Trustee of the Property of L. N. and H. M. Needleman (Bankrupts) and Kreutzer [1956] Ch. 375 and on certain passages in Halsbury’s Laws of England, 3rd edition, volume 23, page 218 paragraphs 472-473. Neither the case cited nor the passages quoted from Halsbury’s Laws of England supported the contentions of counsel. The case of Lever Finance Ltd. dealt with the exercise of statutory powers by persons claiming to be chargees by virtue of instruments executed in pursuance of the provisions of the English Land Registration Act, 1925; and even in that case, Harman, J. considered sections 33(1) and (2) and section 34(1) – to which our sections 28(1) and (2) and section 22 (a) correspond – and after reading those sections, observed at page 382 of the report as follows:-

“I think that justifies the proposition for which it was cited, namely that until the transfer is completed by registration, the statutory powers remain in the person whose name is on the Register; and, therefore until July when the Plaintiff was registered it was not in a position to exercise statutory powers.”

With regard to the passages from Halsbury’s Laws of England it is manifest that they are concerned with section 37 of the English Land Registration Act – a section which counsel for the defendant eventually admitted has no counterpart in this country. Besides, section 37 of the English Act refers to “a person on whom the right to be registered as proprietor…….. has devolved ………… or has been conferred” and it is wrong to assume that no difference exists between such a person and “a person who has applied to be registered as an owner.” The second contention of counsel for the defendant is more difficult to appreciate, but its weakness is implicit in his first submission. In the course of his evidence, Alatishe testified as follows, when he was asked whether he ever got a certificate of title to the land:-

“Yes, but I did not take it away; I at once transferred it to the defendant.”

And in the course of his own evidence the defendant said as follows:-

“I Investigated the title to the land before I paid for it. I investigated the title from the Lands Registry. I afterwards applied to be registered under ‘Title.’”

On the 12th July, 1963, Alatishe did not have to employ a method prescribed by the Registration of Titles Act to transfer the land to the defendant as he himself was not then registered as proprietor of the land under that Act. He chose to do so and must bear the consequences of a non- compliance with the provisions of the Act. It may be that as between him and his transferee, the defendant, an enforceable contract was created in the events that had happened but our decision in this case turns on the effect of the instrument of transfer, vis-a-vis a third party, and whether or not in the context of the Registration of Titles Act under which the defendant and his transferor purported to act, a valid transfer had been effected.

The evidence for the defence and the argument of defence counsel suggested that the defendant regarded himself as a “subsequent registered owner being a purchaser for value” within the provisions of section 53 (2) of the Act. Section 53 reads as follows:-

“53.(1) Registration of any person as owner of any land, lease or charge consequent on a forged disposition or any disposition which if unregistered would be absolutely void confers no estate on such registered owner, but he shall, in the event of the register being rectified to his prejudice on that account and claiming in good faith under a forged disposition be entitled to recover compensation from the Government.

(2) Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such subsequent registered owner.”

It was submitted for the defendant that being a subsequent registered owner who had purchased for value his title was unassailable by virtue of section 53 (2). Cases quoted in support of this contention were:- Yesufu v. Ojo 1958 3 F.S.C. 106 and Lababedi v. Bajulaiye, S.C. 540/65, decided on the 12th June, 1967. The latter case is clearly irrelevant to counsel’s argument. As for the case of Yesufu v. Ojo it is distinguishable on the ground that at the time the transfer was effected the transferor was already registered as the proprietor of the freehold interest in the land concerned. It is well to point out at this stage that section 53 (2) is a section which is often quoted but equally often misunderstood. Subsection (1) of section 53 states that registration of any persons in the circumstances described therein confers no tide to the land on such person and all that subsection (2) does is to qualify the provisions of subsection (1) in relation to a subsequent registered owner – his estate shall not be invalidated by circumstances described in subsection (1) unless his own disposition was void as under subsection (1) or he had not given value for the acquisition. The section does not validate spurious transfers. As stated before, the Registration of Titles Act does not create new land tenures and although it is clear that one of its main purposes or objects is to ensure that at some stage an official investigation of the title had been carried out and recorded, the Act does not protect the inadequacies of such investigation; and so even where a subsequent registered owner is in possession the Register may still be rectified against him for section 61(3) provides as follows:-

“61.(3) The register shall not be rectified, except for the purpose of giving effect to an overriding interest, so as to effect the title of the owner in possession-

(a) Unless such owner is a party or privy or has caused or substantially contributed, by his act, neglect or default to the fraud, mistake or omission in consequence of which such rectification is sought; or

(b) Unless the immediate disposition to him was void, or the disposition to any person through whom he claims otherwise than for valuable consideration was void; or

(c) Unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him.”

It was argued for the plaintiff that his interest in the land is an overriding interest as against that of the defendant and therefore overreached the interest in respect of which the defendant has been registered. The defendant resisted this argument. In view of the conclusion at which we have already arrived, it is not necessary for us to consider this submission.

As already stated, the argument that the purported transfer dated the 12th July, 1963, in favour of the defendant is void, is well founded. On the face of the instrument of transfer itself it could not have been completed when it was executed since no registration number could have been allotted to the land then and such number as now appears on the instrument must have been typed in subsequently and apparently, on a different typewriter. It is enough to say that the transfer was void; and if  it is, the defendant is caught by section 53(1) and as provided in section 61(3) (b) the register may be rectified as against such a transferee. Learned counsel for the plaintiff stated that his client would be satisfied with an order for the deletion of the name of the defendant from the register. He is at least entitled to this and an order to the effect is accordingly made.

It is only necessary to consider, briefly, the other claims of the plaintiff. In respect of his claim for a declaration of title he produced and proved the conveyances to which we have earlier on referred. He gave evidence of the exercise by him since he purchased the land of positive acts of possession and he indeed was in possession of the land when the defendant entered thereon vi et armis. He established that he had successfully defended his title to the land in two court actions, one of them against the predecessors-in-title of Alatishe – the Tinubu family – long before they sold to Alatishe. The defendant did not rely upon any history of title and no member of the Tinubu family on whom his radical title was founded was called to testify on his behalf. His defence was, in the High Court and is before us, as stated earlier on: he is a subsequent registered owner of the land. We have already expressed our views on this standpoint. In our judgment the plaintiff was entitled to a declaration of title and we award him this as claimed. He had asked for £100 damages but had given no evidence of any acts of trespass to warrant the award of more than nominal damages. Trespass is an infraction of the right of possession and although the defendant claimed to be in possession he cannot maintain to be in possession by the mere entry which is complained, of see Browne v. Dawson (1840) 113 E.R. 950. The plaintiff is hereby awarded an amount of £5 as damages for trespass. He is also awarded an injunction.

The only point canvassed on the defendant’s appeal is that the case of the plaintiff should have been dismissed and not non-suited. We do not agree with counsel for the defendant that the case should have been dismissed and his appeal fails and it is hereby dismissed.

The result is that the appeal succeeds and the judgment of the Lagos High Court in Suit No. LD461/65 is hereby set aside.

The following orders are hereby made:-

I. The plaintiff is granted a declaration of title in fee simple to the land in dispute in this case as shown in the plan produced in evidence as exhibit K and thereon edged red and forming part of land covered by conveyance dated the 7th day of June, 1920, and registered as No. 58 at page 179 of volume 138 in the Land Registry, Lagos.

II. The register of titles should be rectified by deleting therefrom the name of the defendant as the registered proprietor of the freehold title to the land.

III. The plaintiff is awarded the sum of £5 as damages for trespass against the defendant.

IV. The defendant by himself his servants and/or agents is hereby restrained from committing or continuing any acts of trespass on the said land.

The plaintiff will have the costs of this case fixed in the court below at 60 guineas and in this court at 62 guineas.

Appeal allowed.

Other Citation: (1967) LCN/1365(SC)

S. O. Williams Permanent Secretary, Ministry Of Works And Housing V Joseph Folarin Kamson (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA C.J.N. 

This is an appeal by the appellant who on behalf of the Federal Ministry of Works and Housing brought an originating summons before the High Court of Lagos under the Public Lands Acquisition Act Cap. 167, to determine the amount of compensation to be paid to the defendant in respect of his residential buildings and factory buildings acquired by Government on land which now forms part of the Campus of the University of Lagos. A sum of £35,646 was offered as compensation to the defendant which he declined to accept although a portion amounting to £15,000 was paid and accepted by him to make it possible for him to move his factory to another site whilst the matter of the amount of compensation payable was contested

In his statement of interest filed on 23rd January 1967 the defendant claimed a sum of £241,339 which he set out in paragraph 14 as follows-

“14. The defendant says that he is entitled to receive compensation of £241,339

(a)    Land    £ 9,468

(b)    Building erected 1957/58    £ 51,460

(c)    Cost of removal    £  27,938

(d)     Loss of income and overhead during installation at new site    £ 12,609

(e)     Incidental Expenses    £ 26,270

(f)     Damage to Machinery    £ 123.062

Total    £241.339

On 17th May, 1967 an amended statement of Interest was filed by the defendant, without leave, and on 24th May, 1967 on an application to the court, leave was given and the amended statement of interest already filed without leave was duly adopted. Paragraph 14 of the amended statement of interest reads-

“The defendant says that he is entitled to receive compensation on either the basis of alternative site or the total extinction of the business as follows:-

(1)            Basis of alternative site.

(a)        Land 7.89 acres at £1,200 per acre    £9,468

(b)        Building Erected 1957/58

(i)     Factory        33,280

fluorescent light bulbs 101 at £3 second hand price    303

(ii)    Residence (Bungalow)    1,916

(iii)    Residence (Storey House)    42,304

(c)    Cost of removal    19,379.15s.

(d)    Loss of Income and overheads    9,727

(e)    Incidental Expenses    26.270

Total    £ 142.647.15s.

(2)             Basis of Total Extinction

(a)        Land    £ 9,468

(b)        Building erected 1957/58    £ 33,280

(i)    Factory

FLUORESCENT LIGHT        303

(ii)    Residence (Bungalow)    1,916

(iii)    Resident (Two storey Houses)    42,304

(c)        Cost of Machinery    81.318

Total    £ 168.589:

In his judgment, the learned judge rejected the alternative claim, namely, the claim for extinction of business. We refer to the portion of his judgment when he said:-

“1 think, however, there is some substance in plaintiffs counsel’s argument that assessment should be based on alternative site being purchased because when defendant’s Company received the £15,000 from the plaintiff as part of the value of purchase money of an alternative site, he did not refund the money back to Government at anytime on the ground that he could not get any alternative site. On that basis I am of the opinion that there is some justification that he, defendant, is estopped to claim compensation for extinction of business because of non-availability of alternative site”

In this regard we have no hesitation in coming to the conclusion as the learned judge that the defendant cannot stake his claim on the extinction of business.

A total compensation of £73,547.15s.11d. on the basis of alternative site was awarded by the learned judge. In making this award the teamed judge stated that the case presented some difficulties to him in that there were different valuations – three different valuations by the plaintiff, and two different ones by the defendant; the three by the plaintiff were given by Government officers. The learned judge first sought to resolve his difficulties by dismissing the assessment of compensation on the basis of extinction of business on which the defendant claimed a total of £168,589 referred to wrongly by the judge as £113,000. We agree with the learned judge that this claim cannot be substantiated since the defendant did not return the amount of £15,000 given to the him for the purpose of moving from the site to a new one to continue his business. He then proceeded to consider the claim on the basis of compensation based on the availability of alternative site.

As we stated earlier he awarded compensation of £73.547.15s.11d. which he arrived at by accepting the assessment of one of the defendant’s valuers in respect of buildings – the factory and the residential buildings. This is in exhibit H which is the valuation of Mr. Ekpenyong who was the defendant’s first witness. The amount shown in exhibit H for the factory and residential buildings is £42,304 which the learned judge accepted; but we observe that again he wrongly awarded a total of £51,772 by including £9,468 which was separately put in exhibit H as value of the land. Added to the cost for buildings the judge allowed a sum of £21,105 as solicitors fees and valuers fees and also a sum of £980.15s.11d for some machinery in crates which were exposed to sun and rain and got depreciated and became useless: whichever way one adds up the figures there was a slight mathematical error in the total awarded but we are not concerned with this.

The plaintiff has appealed against the judgment and the grounds of appeal filed are as follows:-

“3. Grounds of appeal

(1) The learned trial Judge erred in law when he stated at page 8 of the Judgment at page 48 of the record that “Other items for change of address, new letter heads, professional fees for drawing alternative accommodation etc., and valuers fees and solicitors’ fees which were estimated to be totalled £21,015 would be allowed” because compensation cannot legally be paid for such items in view of the decision in Akinola Maja v. Chief Secretary to the Government 12 W.A.C. 392:

(2) The learned trial judge erred in law in entering judgment for the sum of £980:15.s.11d., for goods which were contained in the crates outside the factory when the defendant did not claim for them and more especially when the learned trial judge had rejected the claim for total extinction.

(3) The decision is unreasonable unwarranted and cannot be supported having regard to the evidence.

It is apparent then that the appeal before us relates to the award of £21,105 being amount expended by the defendant as a result of the acquisition and which may be properly called damages suffered by him; also the award of £980.15s.11d awarded for some machinery in crates. As a matter of fact, the latter was not the subject of a claim before the learned judge and the respondent’s counsel before us, wisely in our view, agreed that this award should be withdrawn as it was not claimed. The main argument therefore centred on the former award of £21,105.

On this point, learned counsel for the defendant/respondent has filed on behalf of his client a notice of his intention to contend that the judgment be affirmed on grounds other than those relied on by the learned trial judge, and so it was that before us the main contention was whether the defendant is entitled to any more than the value of his buildings in an open market.

We think it necessary at this stage to give a brief history of the land and buildings acquired. The defendant/respondent who has been carrying on textile business from 1938 decided to set up a factory in what was then known as a remote part of the town.

He acquired about 11 acres of land at Oka Ogbe, Yaba East and bulk a factory which he said is worth £33,500. He also built a bungalow and a two storey building both to the value of about £6,130 according to his estimate.

He was the first to set up on his own a factory of this nature producing textile goods from raw cotton and production started on this site in 1958. In 1962 k was necessary to extend the site earmarked for the University of Lagos. Government acquired compulsorily the whole of his land and in 1964 a sum of £15,000 was paid the to him as an advance against compensation to be awarded so that he might find another site and also

Other Citation: (1967) LCN/1554(SC)

Electricity Corporation Of Nigeria V Chief M. A. Okupe (1967)

LawGlobal-Hub Lead Judgment Report

COKER,J.S.C

The appellants are the plaintiffs in action instituted in the High Court of Lagos against the respondent who was the defendant thereto and in which the writ was endorsed as follows:-

‘1. The plaintiff claims the sum of £ 14,000 (fourteen thousand pounds) against the defendant as obligor under a bond dated 19th day of November, 1963, whereby the defendant became bound to the plaintiff in the sum of £ 14,000 (fourteen thousand pounds) to be paid by the defendant to the plaintiff subject to a condition there under written that if the defendant should execute in favour of the plaintiff a Deed of Conveyance transferring the fee simple absolute and in possession to fourteen acres of land at IKATE, ITIRE, more properly described in Plan No. ECN/WR/41 and there is no failure of the defendants title due to any case whatsoever then the said bond should be void.

2. The defendant has failed to establish his paramountcy of title and in spite of repeated demands by the plaintiff; has failed to execute the said Deed of Conveyance and has failed to pay to the plaintiff the said £14,000 (fourteen thousand pounds) whereby the said bond became due.’

Pleadings were ordered and filed. Paragraphs 8, 9 and 10 of the plaintiffs Statement of Claim read as follows:-

‘8. The defendant entered into a bond on the 19th day of November, 1963 to repay to the plaintiffs the said £ 14,000 (fourteen thousand pounds) should he fail to execute a deed of conveyance in favour of the plaintiffs at the request of the plaintiffs or should there be any failure of the defendants title due to any case whatsoever.

9. That the defendant in spite of repeated demands by the plaintiffs has failed to execute the said deed of conveyance.

10. That the said land at Ikate, Itire, more properly described in plan number ECN/WR/41 dated the 8th day of July, 1964, is in the effective occupation of other third parties, and is part of the land forming the Area Of Law of Suit No. IK/92/63 between I. S. John versus Aderogba Ajao and Others.’

By his own Statement of Defence the defendant joined issue with the plaintiffs on those three paragraphs; at the trial both parties gave oral evidence in support of their pleadings and the plaintiffs in addition produced some documentary evidence. One of the documents produced in evidence by the plaintiffs is the bond on which the action was based. It was admitted in evidence as Exhibit E and is in the following terms:-

‘BY THIS BOND, I, Chief M. A. Okupe, Managing Director of Agbonmagbe Bank Ltd., 162 Herbert Macaulay Street, Ebute Metta, Lagos, Nigeria (herein after called the vendor which term shall, where the context so admits, include his heirs and successors in title) am held and firmly bound to the Electricity Corporation of Nigeria, a body corporate duly established and incorporated under the Electricity Corporation of Nigeria Act No. 15 of 1950, (hereinafter called the purchasers which term shall where the context so admits, include the assigns and successors in title of the Purchasers) for the payment to them of the sum of £14,000 (fourteen thousand pounds), the purchase price of fourteen acres of land which is held by the vendor for an estate in fee simple in possession free from encumbrances at Ikate, Itire and which forms part of all that parcel of land described in the conveyance dated the 9th day of June, 1962, and registered as No. 16 at page 16 in vol. 561 in the Lands Registry Office at Ibadan, Western Nigeria.

Sealed with my Seal this 19th day of November, 1963.

WHEREAS the purchasers have this day at the request of the vendor paid to him the sum of £14,000 (the receipt of which sum the vendor hereby acknowledges) upon an express agreement that the vendor shall execute in favour of the purchasers as soon as this is ready, a Deed of Conveyance of the said area and piece of land at Ikate.

NOW THE CONDITION of the above written Bond is such that if the vendor shall execute in favour of the purchasers as soon as called upon to do so, the said Deed of Conveyance, and if there is no failure of vendors title due to any case whatsoever, then the above written Bond shall be void but otherwise, the same shall remain in full force and effect.’

After hearing evidence from both sides, the learned trial judge in a considered judgement dismissed with costs the plaintiffs action and the present appeal is from that judgement.

Before us on appeal, it was contended on behalf of the plaintiffs that the defendant was in breach of the conditions of the bond and the bond should have been estreated and judgement given against him. For the defendant it was submitted that it was for the plaintiffs to establish that there was a breach of the condition of the bond and that they had failed to do so.

Learned counsel for the plaintiffs argued as follows:-

(a) (i) That the recital in the bond shows that the defendant possessed an estate in fee simple absolute in possession free from encumbrances in the land concerned; that such recital should be read as part of the condition of the bond; that as there was some litigation over the land the defendants estate is not therefore free from encumbrances and the defendant is in breach of the condition of the bond;

(a) (ii) That the conveyance recited in the bond was the one on which the defendant had based his covenant and inasmuch as he had had to obtain a further conveyance from another vendor in respect of the same land, that was an acknowledgement that his title as recited in the bond was defective and constituted a breach of the condition of the bond; and

(b) That the defendant covenanted to execute a conveyance of the land to the plaintiffs if and when called upon to do so; that the plaintiffs had requested him to execute such a conveyance to them but he has failed or neglected to do so.

With respect to (a), counsel referred to a portion of .the introductory recital in the bond concerning the amount of £14,000 paid to the defendant and the description of the land concerned, i.e.

‘ … the sum of £14,000 (fourteen thousand pounds) the purchase price of fourteen acres of land which is held by the vendor for an estate in fee simple in possession free from encumbrances at Ikate, Itire and which forms part of all that parcel of land described in the conveyance dated the 9th day of June, 1962, and registered as No. 16 at page 16 in vol. 561 in the Lands Registry Office at Ibadan, Western Nigeria.’

Counsel referred us to a passage in Halsburys Laws of England, 3rd edition, volume 3, page 337, paragraph 639. We have read this passage and we are satisfied that the passage means no more than that the recitals can and do control the conditions of a bond, especially where the wording of the condition is neither clear nor unambiguous. In the present case, the condition is clear and unambiguous and we do not think that it was necessary to import the recitals into the condition. This much is also stated in the passage on which learned counsel has relied in addressing us.

Counsel further urged upon us that the learned trial judge was wrong to take the view that the plaintiffs already knew all about the nature of the defendants title and the defects in that title before they entered into the contract to purchase the land from him. We were referred by counsel on this point to several passages in the judgement and to a number of authorities including the judgement of Romer, J., in Jones v. Barnett [1899] 1 Ch. 611. Counsel pointed out that the defendant had not pleaded estoppel in his defence and that the judge should not have held the plaintiffs estopped by their previous knowledge about his title. We do not think that the argument covers the point. Undoubtedly the obligor on a bond is bound by the recitals where those recitals, as in this case, are clear and unambiguous and it goes without any doubt that a defect in title may be of such a serious nature as to be tantamount to a total failure of such title; but the question in this case is a different one and the plaintiffs Statement of Claim clearly states that the defendants title has wholly failed. The reason given in evidence for this is the existence of certain litigation over the land and the pleadings in that case were produced in evidence. The defendant is not a party to that litigation and although it was given in evidence on behalf of the plaintiffs that there were certain other persons claiming the land, it was not established that these persons were claiming through or against the defendant. Counsel for the plaintiffs rightly submitted that in this action the court could only look at the bond and that the contract for sale of land was only indirectly relevant.

We are in agreement with him on this submission and we take the view that the plaintiffs must be confined to their pleadings: and the breach of which they complained as set out in paragraph 9 of their Statement of Claim. On that pleading it is manifest that the burden of establishing an infraction of the condition of the bond lies squarely upon them. The question here, therefore, is not whether the existence of this litigation would have entitled the plaintiffs to rescind a contract for a sale of the land but whether the plaintiffs succeeded in establishing affirmatively while the litigation was still undetermined that the vendors title had failed. We do not consider that they did and the case of Jones v. Barnett (supra) on which the plaintiffs relied does not appear to help them on this issue.

Furthermore, counsel referred us to portions of the evidence showing that the defendant did obtain a further conveyance of the land in respect of which he was paid £14,000 from one Isaac John. The conveyance recited in the bond was produc

Other Citation: (1967) LCN/1544(SC)

M. Ola Owodunni V Anthony Akinsola George (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMAN,J.S.C

In this appeal the defendant complains of the judgement given by Caxton Martins J. in the Lagos High Court Suit 241/63 on 11th June,1964 declaring title to a piece of land in favour of the plaintiff and granting him possession.

It is common ground between the parties that the piece in dispute formed part of a large area which originally belonged to the Eyisha Family. It is in evidence that the Osun Apena and the Fafunmi branches went to court in 1913 about sales of pieces to one person and another and reached a settlement whereby the buyers named in it would, each upon payment of the sum against his name, be put in possession and be given a conveyance when they wished. One of those buyers was Lawani Atan or Lawani Giwa, who was to pay £10; whether he did has been mentioned in several cases. Tew J. in 1929 in Suit 105/1928 (Abijo v. Sogunro and Egba) (exhibit 6) was not willing to accept the contention that as Lawani Giwa had no receipt and no conveyance, he had forfeited his title to the land; on the other hand Johnston J. in 1954 in Suit 414/1952 (exhibit 22) (Chief Secretary to Government v. Equagoo and others) was not willing to accept the contention that he had paid, and awarded the compensation to the Eyisha Family. And in Oludipe v. Beyioku, F.S.C. 65/1956, in 1956 the Federal Supreme Court did not think that Lawani Giwas title was established (exhibit 23). We now have to consider the dispute between the parties to the present appeal.

The plaintiffs case is that he bought with a conveyance from the son of Lawani Giwa in 1956, and he traces his title back to the conveyance given to Lawani Giwa in 1911 by the son of the head of one branch of the Eyisha Family, namely, Aboki Bada, who had sold an area to Lawani Giwa in 1910 comprising the piece now in dispute. The defendant denied the plaintiffs title, but the trial judge found in the plaintiffs favour, and this is one of the complaints made by the defendant on appeal.

His other complaint relates to the trial judges decision on his defence of acquiescence on the part of the plaintiff. In the Statement of Claim the plaintiff, anticipating that plea, alleged that he came to know in July 1960 of the defendants building preparations on the land and wrote a letter of warning to him. This the defendant denied in his Defence, adding that he obtained in 1958 a conveyance from persons purporting to act for the members of the Eyisha Family, and that upon learning in 1961 that an important member had not signed his conveyance he obtained a deed of ratification from him; that he was not disturbed by anybody in his possession; that he built a large house in 1959, and more buildings in 1961; and that he would rely on laches, acquiescence, etc. And the defendant testified to that effect. In this regard it is enough to add that in his evidence the plaintiff sough to put in a copy of a letter which he said he had sent to the defendant, but it was rejected; thus the plaintiff was left in the perilous position of failing to prove his allegation of warning the defendant perilous in view of his allegation that he came to know of the building preparations in July 1960.

The principle of equity is stated in Ramsden v. Dyson (1866) L.R., 1 H.L. 129 at

‘If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights’.

Dyson was claiming in that case through Thornton, who as a tenant at will, or at most from year to year, had built on the land he took as tenant. Lord Cranworth goes on to say that-

‘It follows as a corollary from these rules, or perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end’.

Ramsden v. Dyson was mentioned in argument before Fry J. in Willmott v.Barber (1880) 15 Ch. D. 96, in which that learned judge stated the factors in acquiescence (at p. 105), quoted and followed in Abbey v, Ollenu, 14 W.A.C.A. 567, at 568. There is no need to quote them here again: they are much to the same effect as the statement in Ramsden v. Dyson. It is convenient. however, to note here, in anticipation of the argument for the present plaintiff, the remark made by Fry J. (at p. 10 1) on the argument that Willmott (the sublessee) had opportunity of ascertaining the provisions of the original lease from Bowyer (the lessor) to Barber (the lessee): Fry J. said as follows:

‘The equitable doctrine of acquiescence is founded on there having been a mistake of fact; can it be repelled by shewing that there was constructive notice of the real facts? In every case in which a man acts under the mistaken belief that he is entitled to land, he might, if he had inquired, have found out that he had no title. And yet the Courts appear always to have inquired simply whether a mistake has been made, not whether the plaintiff ought to have made it’.

The learned judge confirmed that remark in his judgement (at p. 1(6) where he said this:

‘But, in my judgement, when the plaintiff is seeking relief, not on a contract, but on the footing of a mistake of fact, the mistake is not the less a ground for relief because he had the means of knowledge.’

In the judgement now under appeal Caxton-Martins, J. does not mention those authorities; they were not referred to by the counsel who addressed him. Dealing with the defendants case in equity, the learned judge says as follows:

“ Although it has not been established by evidence that plaintiff warned the defendant off the land, but the duty is on the defendant to make a thorough search about the title of those who offered him the land for sale, satisfy himself that the vendors were the owners and that the land was free from superior claims. Defendant himself admitted that the Land Registry showed that previous conveyances had been registered when he made a search. The search should have been conducted before the purchase and this would have prevented the defendant from buying a law suit instead of a land.’

In effect the learned judge accepts that the defendant built without any warning from the plaintiff of his claim of title, but must lose because he could have found out that the plaintiff had a superior claim to the land. We need not inquire whether that is so. The defendant bought with a conveyance and built at great expense on the land in the belief, here assumed for this aspect of the appeal to have been mistaken, that the land was his; the plaintiff knew about it and regarded the land as his own, but did not warn him, and now wants the land and buildings for himself. The trial judge grants it to him on the basis that the defendant ought not to have made a mistake on the ground of what is usually described as constructive notice; but, with respect, that is helping the plaintiff to reap the fraudulent fruit of standing by, and the equity of the defendants case must prevail.

Mr Ayoola, who appeared for the plaintiff, conceded, very rightly and properly, that the judgement recognised the equity of the defendants case but rejected it on the ground of constructive notice, and sought to support this ground of rejection by citing Morayo v.Okiade, 8 W.A.C.A. 46. We must say at once that if the judgemenr in Morayos case adopted that ground we cannot, having regard to Willmott v. Barber (above), follow it.

Reading the judgement we find it mentions Ramsden v. Dyson and goes on to say (at p. 48) that Caroline Morayo ‘did all within her power to apprise the respondents of her claim to the property but in spite of that knowledge they embarked on the erection of the building.’ That is an understandable ground for the decision. But the judgement goes on to say as follows:

‘Moreover, in view of Rennie v. Young (1858) 44 E.R. 939 in which it was held that the equitable rule as to the effect of a persons lying by and allowing another to expend money on his property does not apply when the money is expended with knowledge of the real state of the title, we are unable to reconcile the learned judges finding on the third ground of defence namely that the defendants admit that they made no inquiries as to Oshodis title and must be held to have had constructive notice of the documents on which their title was based namely the auctioneers receipt and plaintiffs Own conveyance with his decision that the appellant is estoppel.

We are of opinion that having held that the respondents had constructive notice of the appellants title he was precluded on the authority of Rennie v. Young (supra) from finding that acquiescence on the part of appellant operated as estoppel.’

In Rennie v. Young, Rennie put engines into a ship by agreement on certain terms with Green, who had an invalid contract for the purchase of the ship; Rennie did so with the knowledge and approbation of the Youngs, the registered owners, but the engines did not enable the vessel to attain the required speed, and the Youngs refused to pay the stipulated price or allow Rennie to remove the engines. He filed a bill in Chancery for a decree that the Youngs and Green should pay a certain amount, that the ship be sold to satisfy it etc., and obtained a decree in certain terms, from which-the Youngs appealed. Rennies case in support of the decree was that the Youngs encouraged him to put the engines into the ship under his agreement with Green, under which he was entitled to remove the engines if they did not attain the required speed. Knight Bruce, L.J. held that no equity arose in the case, which was a mere money demand for labour and materials to be enforced at law. Turner, L.J. also thought there was no case in equity against the Youngs, and added:

‘Either they were under a contract with the plaintiff or they were not. If they were, the plaintiffs remedy is at law. If they were not, then the only circumstance on which an equity can be founded is, that they allowed the plaintiff to put his machinery into a ship which legally belonged to them. But the plaintiff does not say that he did not know that the ship belonged to them. If a man places his property on the land of another person with full knowledge of that persons title, how can the fact that the landowner assented to its being placed there give an equity to have it restored? If it did, the doctrine would come to this, that whenever a man lays out money on another persons land with the consent of the owner, he has an equity to have it repaid.’

That appears to be the basis of the statement in the headnote (at p. 940) that-

‘The equitable rule, as to the effect of a persons lying by and allowing another to expend money on his property, does not apply where the money is expended with knowledge of the real state of the title.’

Rennie knew he was putting engines into a ship belonging to the Youngs; the observations of Turner, L.J. do not in our opinion warrant the engrafting of ‘constructive notice’ in the Morayo judgement upon the doctrine of standing by.

Having decided that the plaintiff was debarred in equity from turning out the defendant, we find it unnecessary to decide whether the plaintiff has the better title, and offer no opinion on the merits of his title or of the defendants: for in any event we would refuse to give the plaintiff a declaration of title in the exercise of our discretion on what is essentially a matter of equity.

Before closing this judgement we would ask judges of the High Courts to state in their decisions not only the exhibit numbers but in addition the survey number of the plan put in for the land in dispute, and also the registration number of the conveyance put in, so as to facilitate interested persons in ascertaining the effect of the decision in a given case. The plan put in by the plaintiff here is numbered C.T.220/62; his conveyance is registered as No. 67 at page 67 in vol. 1080 of the Land Registry in the office at Lagos.

The defendants appeal is allowed with costs assessed at sixty-seven guineas; the judgement of 11th June, 1964 in the Lagos High Court Suit 241/1963 is hereby set aside, the claims in the suit arc dismissed, and judgement shall be entered accordingly with costs to the defendant assessed at forty-three guineas; and if the defendant has paid costs as ordered by the High Court, they shall be refunded to him.

Other Citation: (1967) LCN/1476(SC)

Jimoh Aileru And Others V Ademuoye (Decd.) Substituted By Muyibatu Ademuoye And Others (1967)

LawGlobal-Hub Lead Judgment Report

BRETT, J.S.C.

In this case the plaintiffs for themselves and for and on behalf of the Ojuwoye Community of Mushin claimed a declaration that the Community are the absolute owners under native law and custom of a piece of land off Agege Motor Road, Mushin, damages for trespass, an injunction to restrain further trespass, and possession of the land. The defendant pleaded that he became the fee simple owner of the land by virtue of a deed of com eyancc executed by certain persons who turned out also to be members of the Ojuwoye Community and that he had entered on the land, cleared it, and expended a sum of about £5,500 in erecting substantial buildings on the land without any indication of the interest of the plaintiffs on the land.

The trial judge held it proved that the Ojuwoye Community were the owners of the land and that the defendants vendors had had no authority to sell it. If the matter rested there the plaintiffs would be entitled to exercise the legal rights of the owners of the land; but the judge also accepted the defendants evidence that he had entered into a contract to buy the land in January 1962, started building in March 1962, after obtaining the Planning Authoritys approval of his building plan, and completed the building in June 1962. He further held that the plaintiffs knew that the defendant was building on the land in the belief that it was his and had done nothing to warn him of their interest while the building was in progress. He granted the plaintiffs a declaration of title but dismissed their claim to the other forms of relief. The plaintiffs have appealed against the dismissal of part of their claim and the defendant has served notice of his intention to contend that the decision of the Court below be varied by dismissing the claim for a declaration of title.

The plaintiffs did not attack the finding that they knowingly stood by and omitted to warn the defendant while he was putting up his building but they have submitted that the defendant has failed to show that he had an honest belief that the land was his. This was not a case of purchase from complete strangers to the land and according to the plaintiffs themselves the only use to which they put the land was as an occasional praying ground. The plaintiffs have not shown that the judge was wrong in holding it proved that the defendant honestly believed that the land was his, and we uphold his findings of fact. On those findings the judge was correct in refusing to allow the plaintiffs to exercise their legal rights as owners of the land, but the question remains whether his judgement as a whole did the fullest possible justice between the parties and whether it should be varied in any way.

In arguing the cross-appeal, Chief F. R. A. Williams submitted that the grant of a declaration of title is discretionary: Thomas v. Holder (1946) 12 W.A.C.A. 78; and that the judge erred in treating it as a matter of right and not exercising his discretion. He referred to a number of decisions of the West African Court of Appeal, and asked the Court to distinguish between the case involving the reversionary rights of an overlord in land occupied by customary tenants, where inactivity over a long period may form an element in laches, and the case, such as this one, where the owner of land, by his acquiescence, impliedly authorises or encourages the expenditure of a large sum of money by someone acting in good faith in the belief that the land belongs to him.

We agree that the grant of a declaration of title is a matter for the courts discretion, and that it should certainly not be made as a matter of course in a case like this one. However, in exercising a discretionary power in such a case as this the court should try to make an order that will settle the rights of the parties finally, and we do not think it possible to consider this particular form of relief in isolation. What the defendant has in the events that have taken place is not an equitable interest in the land but what is called an equity. In Halsburys Laws, 3rd Edition, volume 14, paragraph 1180, it is said that where such an equity is created by the acquiescence of the owner of the land, the person who has expended money will be entitled to have his supposed title confirmed or, at any rate, to be compensated for his outlay number of cases are cited in the footnotes to that paragraph, and the forms of relief granted in some of them are summarised in the judgement of the Judicial Committee in Plimmer v. The Mayor of Wellington (1884) 9 App, Cas. 699, at pp. 713-714, as follows-

‘In such a case as Ramsden v. Dyson (1866) L.R. 1 H.L. 129 the evidence (according to Lord Kingsdowns view) shewed that the tenant expected a particular kind of lease, which Vice-Chancellor Stuart decreed to him, though it does not appear what form of relief Lord Kingsdown himself would have given, In such a case as the Duke of Beaufort v. Patrick 17 Beav. 60 nothing but perpetual retention of the land would satisfy the equity raised in favour of those who spent their money on it, and it was secured to them at a valuation. In such a case as Dillwyn v. Llewelyn 4 D. F, & J. 517 nothing but a grant of the fee simple would satisfy the equity which the Lord Chancellor held to have been raised by the sons expenditure on his fathers land.

In such a case as that of the Unity Bank v. King 25 Beav, 72 the Master of the Rolls, holding that the father did not intend to part with his land to his sons who built upon it, considered that their equity would be satisfied by recouping their expenditure to them. In fact, the Court must look at the circumstance in each case to decide in what way the equity can be satisfied.’

It is clear that in giving effect to an equity of this kind the courts have exercised a very wide discretion in making such an order as will do substantial justice between the parties and settle all outstanding questions between them. As the Judicial Committee points out, there can be no general rule as to the proper order and ‘the court must look at the circumstances in each case to decide in what way the equity can be satisfied.’ There has been no counter-claim in the present case and as matters now stand the only alternative open to the Court on any of the forms of relief sought are to grant or refuse it, but it is clearly unsatisfactory, and almost an invitation to further litigation, if at the end of the case the legal title is vested in one party and the right to adverse possession in the other, and the courts have favoured an order that will vest title and the right to possession in the same party, while allowing the other party such compensation as may be just for the extinction of his rights. An analogous instance may be found in the decision of this Court in Oluwo v. Adebowale (1964) N.M.L.R. 17, where citing Clough v. L.N. W.R (1871) L.R. 7 Ex. 26, the Court gave the plaintiff the opportunity of rescinding the contract for fraud, arid resuming the property parted with under the contract, but made it a condition that he should restore the value of what his predecessor in title had received under the contract.

In the Duke of Beaufort v. Patrick 17 Beav. 60, 51 E. R. 954, there was a claim for a conveyance of the land to the owner of the equity, he offering to pay compensation. In Dillwyn V. Llewelyn 4 D.F. & J. 517, 45 E.R. 1285 there was a claim for a conveyance, but consideration had already been given and no further compensation was payable. In the hope of being enabled to give a judgement which will finally settle the issues the Court will adjourn this appeal, so that the plaintiffs may consider whether to offer the defendant compensation for the expense he has incurred and the defendant may consider whether to counter-claim for a conveyance and offer to pay the plaintiff the value of the land as it was when he entered upon it. The amount of the compensation payable on either side could, if not agreed, be determined by the High Court after evidence had been called.

The appeal is adjourned for twenty-eight days to enable the parties to consider their positions and take advice. If either party applies to amend the Court will hear further argument; if not, the appeal will be determined on the existing record.

Other Citation: (1967) LCN/1364(SC)

Asuquo Ekpenyong V The State (1967)

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BAIRAMIAN, J.S.C.

Asuquo Eyo Ekpenyong, to whom we shall refer as the prisoner, was tried in the High Court of Lagos on sixteen counts, which may be sorted out as follows:

A. Forgery of cheques: counts 1, 4, 7, 10, 13.

B. Uttering of forged cheques: counts 2, 5, 8, 11, 14.

C. Stealing of money, the property of the Bank of West Africa: counts 3, 6, 9, 12, 15, 16.

The trial judge (Lambo, J.) convicted him on all counts- Case No. LA/4C/1967, on May 29th 1967 – and he has appealed against conviction.

The prisoner opened an account in a business name in the Bank of the North Ltd, with an amount of £60; a few days later he began paying Into k forged cheques drawn on the Bank of West Africa – five of them within the first fortnight of December 1965; and in those days drew cheques on his account: whence the counts of forgery, of uttering, and of stealing.

So far as the stealing counts are concerned, state counsel concedes that the conviction on them was wrong in law. When a person has an account which is in credit, the bank is his debtor to the extent of the credit balance; and when he draws money on his account the money he is paid is the money of the bank. In this case the prisoner had his account with the Bank of the North Limited, and the amounts in the counts of stealing were the amounts which he drew on his account in that Bank; so it could not be said that those amounts were the property of the Bank of West Africa – which is what the counts on stealing allege. The court therefore indicated at the hearing on 30th November, that the convictions and sentences on those counts would be quashed.

That opened up the problem of the sentences passed by the trial court on the forgery and uttering counts – three years on each count, with all the terms to run concurrently. We thought that as the amounts involved were In the neighbourhood of £10,000, three years would be too little; moreover, the trial judge passed six sentences on the counts of stealing – two years on count 3, four years on count 6, one year on count 9, two and half years on count 12, two and a half year on count 15, and three years on count 16 – and ordered them to run consecutively, thus making a total of fifteen years. We therefore drew attention to the provisions of s.27(1) of the Federal Supreme Court Act,. 1960, and adjourned to 2nd December, so that counsel should have an opportunity of considering that subsection, which provides that:

“27(1) If it appears to the Supreme Court that an appellant, though not properly convicted on some count or part of the information or charge, has been properly convicted on some other count or part of the information or charge, the Court may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as it thinks proper, and as may be warranted in law by the verdict on the count or part of the information or charge on which the Court considers that the appellant has been properly convicted.”

Counsel had an opportunity before the adjourned hearing of looking at the relevant cases, which are –

(1) O’Grady, (1941) 28 Cr. App. R.p. 33.

(2) R. v. Lovelock (1956) 1 W.L.R. p.1217.

(3) The Queen v. Edirimanasingham (1961) A.C. p. 454 (P.C).

(4) R. v. Craig (1967) 1 W.L.R. 645.

Cases (1) and (2) were decided under s.5(1) of the Criminal Appeal Act of 1907 in England, which is the parent of our s.27(1). Case No. 3 in the Privy Council was decided on a similar provision in Ceylon. Case No. 4 was decided in England under that provision as modified by s.4(2) of the Criminal Appeal Act, 1966, which however does not apply in Nigeria.

The effect of those decisions is clear, and they all point one way. Suppose, for example, that a defendant is tried in the High Court on counts A and B; that he is convicted on both counts; that he is sentenced on count A but not on count B; see cases (1) and (3). Suppose in that example that the High Court passed sentence on both counts; the substitution for the sentence passed by the High Court: case (2) and (4). There is of course this limitation, namely, that the sentence which the Supreme Court passes on count B, whether for the first time or in substitution must be within the range of punishment that is laid down by law for the offence; otherwise there is no other limitation on the Supreme Court. Both the learned counsel agreed that that is so.

Mr. Coker for the prisoner has submitted that the power given by s.27(1) ought only to be exercised where the offences are connected. He argued, that, as not only some but all the counts of stealing were to be quashed, it was not a proper case for the exercise of the power. There is no authority for that argument. Moreover it seems to us that all the offences were connected: they were a series of fraud with a nexus between the unttering of the forged cheques and the withdrawing of money out of the account which was fed with the forged cheques, and that is why there is a set of counts in one information. We cannot see in S.27(1) any such limitation in law as Mr. Coker has argued for. Moreover the facts do not enable the argument to be raised.

In our view this a proper case in which we ought to exercise the powers conferred on the Supreme Court by s.27(1); having regard to the prisoner’s repeated offences and the amounts involved, we cannot allow the prisoner to serve a sentence of three years only.

As regards the counts of forgery and uttering the Court had not given leave to appeal, and it was a mistake on the part of the prisoner’s counsel to insert grounds of appeal on the facts in regard to those counts. We note that the prisoner gave notice of appeal alleging that the decision was against the weight of evidence; he had no right to give notice of appeal: what he should have done was to give notice of application for leave to appeal on the ground that the decision was unreasonable or could not be supported having regard to the evidence. So far as the counts of stealing were concerned the error was error of law and there was an appeal as of right in regard to those counts, but that did not entitle the prisoner to appeal on the counts of forgery and uttering in regard to the facts. On the facts he was properly convicted.

It is ordered that the conviction on counts 1, 4, 7, 10 and 13 on forgery, and counts 2, 5, 8, 11 and 14 on uttering, shall stand; and as regards sentence, it is ordered, in substitution for the sentence passed by the High Court, that the term on each one of those counts shall be six years and that all the terms shall run con-currently so that the whole sentence shall be six years.

As to counts 3, 6, 12, 15 and 16 which relate to stealing, the appeal is allowed: the conviction and sentence on each of them is quashed and a verdict of acquittal shall be entered.

Other Citation: (1967) LCN/1363(SC)

Morinatu .O. Oduka And Others V A. Kasumu And Others (1967)

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COKER, J.S.C

Delivering the Judgment of the Court

The appellants have appealed to this Court against the judgment of Fakayode, J. given at the High Court, Ikeja, on the 28th May, 1965. They were the defendants in an action instituted against them by the respondents who were the plaintiffs in the court below – Suit No. HK/63/61. as on the original writ of summons the claim of the plaintiffs was a follows:-

“(a)Declaration of title under native law and custom to a piece or parcel of land known as Bashua village in the Western Region of Nigeria, a plan of which will be filed in this court.

(b)An Injunction restraining the defendants, their servants and agents from any act of trespass on the said land.”

The plaintiffs’ Statement of Claim was amended twice and the last paragraph of the amended Statement of Claim on which the case went to trial reads as follows:

“WHEREUPON the plaintiffs claim a declaration that the Bashua family are the owners by native law and custom of all the area of land edged yellow in the plan attached herewith. In the alternative, the plaintiffs claim that all the land edged red in the plan attached herewith belongs to the Bashua family, subject to the rights of the descendants of Somolu, Sanusi Alade and Bajulaiye or those claiming title or interest through or under any of them.”

The claim for injunction was apparently dropped as no further reference was made to it in the course of the judgment.

The land, the subject-matter of the case, is situate at and known as Bashua Village and lies in the Yaba district of the mainland of Lagos. It is shown on the plan filed with the Statement of Claim and therein edged yellow. Such a plan i.e. No. LD 45, was produced in evidence by the plaintiffs and marked exhibit D. The case of the plaintiffs by their pleadings and the oral evidence given on their behalf is that the land in dispute was originally settled by one Odu Bashua, that the plaintiffs are his lineal descendants, that the defendants are the descendants of one Oduka, the child of a slave woman lbitola (or Ibitile) whose master was one Akinluyi Alashe. According to the plaintiffs, Akinluyi Alashe was a child of one Oluketebo who was one of the domestics of Chief Shadare Bashua the only child of Odu Bashua. It was also part of the plaintiff’s case that in or about the year 1917 Oduka became the head of the Bashua chieftaincy family and that it was in that capacity that he made several grants and sales of portions of the Bashua family land. Thus stated it is not clear from the plaintiffs’ case what had sparked off the present litigation: one has to go to the case of the defendants to see this.

The defendants claim that they descended from Oduka Akinluyi and that they and their ancestors before them have never been members of or related to the Bashua chieftaincy family. According to them the original owner of the land in dispute was their progenitor one Oniketebo (sometimes called Oluketebo) whose son Oduka Akinluyi was. They also maintained that the land in dispute belongs to the Oniketebo family, that Oduka Akinluyi dealt with portions of the land as head of that family and that the ancestors of the plaintiffs were some of the customary tenants placed on the land by the Oniketebo family in return for the payment of tribute.

Some of the dealings with portions of land at Bashua village had provoked litigation, chiefly between purchasers from the lineal descendants of Odu Bashua and those of Oduka Akinluyi, and some of the judgments in those cases were produced in evidence at the trial.

In a reserved judgment the learned trial Judge took the view that the question whether Oduka Akinluyi exercised dominion over the Bashua village land as the head of the Bashua chieftaincy family or as the head of the Oniketebo family had been decided in previous proceedings and that that question is now res judicata binding upon the present parties in this case.

He held that the result of the cases is that Oduka Akinluyi was at one time head of the Bashua chieftaincy family and that he dealt with the Bashua village lands in that capacity. He therefore entered judgment In favour of the plaintiffs granting them a declaration as follows:-

“The Bashua chieftaincy family are the owners by native law and custom of all the area of land edged yellow in the plan No. LD45 drawn by licensed Surveyor Kukoyi on 20-4-63 and marked Exhibit D in this case.”

The Judge followed this up by an explanation of the effect of the judgment in the following terms:-

“(a)The Bashua chieftaincy family shall be of 2 branches consisting of the plaintiffs’ family and the defendants’ (Oduka) family.

(b) That all the gifts, grants, sales/leases, mortgages, pledges or other dealings or dispositions in the land in dispute made by Oduka personally before 1926 shall be deemed or regarded to have been made by him in his capacity as head of the Bashua chieftaincy family and be deemed and regarded as having been made with the consent of the principal members of the plaintiffs’ and defendants’ branches of the family and were therefore valid for all purposes whatever.

(c) That after 1925 all such dealings or dispositions in the land in dispute without the consent of the principal members of the branches of the plaintiffs’ and defendants’ family shall be regarded as being invalid provided always that in an action for trespass, injunction or recovery of possession of such land whether or not the equitable defences of laches, acquiescence, standing by or long possession shall be available to the defendant will be determined upon the peculiar facts of each case.”

Before us on appeal the argument ranged around the implications of “res judicata”. Counsel for the defendants contended that the judgments produced in evidence did not constitute res judicata because the parties in the present case were not parties or privies to the other cases and the issues decided in those cases and those to be decided in the present case were not the same. He conceded that the lands in dispute in the previous cases were parts of Bashua village land. Counsel also argued that even though the judgments in the previous cases contained statements to the effect that Oduka dealt with lands as head of a family they did not directly decide that he did so as the head of the Bashua family, for that point was not necessary for the various decisions and so did not constitute such parts of the judgment as would operate as res judicata. Cases cited in support of this contention are: Jones v. Lewis [1919] 1 K. B. 328 and Penn-Texas Corporation v. Murat Anstalt and Ors (No .2) [1964] 2 All E. R. 594.

Counsel for the plaintiffs in his arguments contended that res judicata operated by virtue of the cases previously decided and that the effect of the previous judgment is that Oduka Akinluyi acted throughout as the head of the Bashua chieftaincy family.

We think that a great deal of the argument on behalf of the defendants is beside the point and that on the state of the pleadings at the time the action went to trial, the issue to be decided fell and now still falls within a small compass. One of the objects of pleadings is to settle the issues to be tried and we take it as established law that parties must be and are bound by their pleadings. The plaintiffs’ amended Statement of Claim reads in part as follows:-

“3. Both plaintiffs and defendants are descendants of the said Odu and accordingly members of the Bashua family.

4. In Suit No. 74/26 one Sanusi Alade successfully brought an action for declaration of title against Yesufu Adebiyi, Bashua Disu Otun Bashua and Sanni Akiluyi Alase for declaration of title to a piece of land edged red in the plan attached herewith having purchased the said land from the Bashua family.

7. The plaintiffs will contend at the trial of this action that the defendants are estopped by the proceedings and/or judgments in Suit No. 74/26 from denying that the land in dispute was Bashua family land or from claiming that the said land belongs only to the Oduka section of the family.

8. Further and in the alternative the plaintiffs will contend that the defendants are estopped by the judgment in Suit No. FSC 376/63 delivered In the Supreme Court of Nigeria on 9th April, 1964 (Apalara Bashua and Anor v. Mrs. Margaret O. Daniel) from denying that the land in dispute was Bashua family land or from claiming that the said land belongs only to the Oduka section of the family.”

The defendants’ amended Statement of Defence reads in part as follows:-

“3. The defendants were never members of Bashua family, but that certain members of Bashua family were at one time tenants of the Oniketebo family (which family was later popularly known as Oduka family) in respect of certain area of farmland known as Obashua…….

10. Consequently, Oduka on behalf of his family sold portion of the land ten-anted by the Bashuas to Sanusi Alade.

11. In Suit No. 74/1926: Sanusi Alade versus Y.A. Bashua and two others, Sanusi Alade successfully instituted action against two of the descendants of Seidu Odunran Bashua. The defendants unsuccessfully appealed against the said judgment…

16. Such tenants deriving title from members of Bashua family, have been successfully sued by persons deriving title from the Oduka family. Members of Bashua family have testified on behalf of their family for such defendants. The defendant will rely on such judgments as estopping the plaintiffs from re-opening the right of Oniketebo family to the land in issue.

The judgments which defendants will rely upon Include inter aria the following suits:-

(1) 75/57: The Registered Trustees of Hope Rising Voluntary Fund Society v D. M. Ihome and D. Apalara Bashua.

(2) 74/1926: Sanusi Alade v Yesufu Adebiyi Bashua and two others.

(3) AB/64 and 66/58: Fanny O. Johnson and another v L. B. Matilukoro, Osinyemi and Apalara Bashua.”

Thus it is dear that each party pleaded and relied on the judgments in Suit No. 74/26, Sanusi Alade v. Yesufu Adebiyi and Ors as estopping the other from re-litigating Issues which had been decided in that case. It follows therefore that at the trial it was common ground that the judgments in that suit creates an estoppel per rem judicatam as between both parties. Such a fact does not need any further proof and did not require to be proved any longer at the trial. If that be so, the only question for determination was what that case decided.

A copy of the judgment of the Divisional Court in that case as well as a copy of the judgment of the Full Court in the case was produced and admitted in evidence as exhibit A. The plaintiff in that case had purchased a portion of Bashua village land from Oduka and he had sued the defendants who were members of the Bashua family for a declaration of title to the land which he claimed to have bought. The point for decision in that case was whether Oduka as head of the family sold with or without the consent of the members of the family who should be consulted. The Divisional Court decided that such consents of the members of the Bashua family as were necessary were obtained by Oduka before the sale to the plaintiff. The defendants appealed to the Full Court which dismissed their appeal and observed as follows:-

“The respondent acquired the land in March 1925 by purchase from one Oduka, since deceased, who was head of the Bashua family to whom the land in question belonged.

The first two appellants are tenants on this land of the Bashua family and the third is a member of that family. A fourth defendant, Amodu Giwa Bashua, died before the judgment of the Divisional Court was delivered.

The learned Chief Justice found as a fact that the respondent did purchase this land from Oduka. This fact is clearly established by the evidence and nothing more need be said on that point.

It was argued, however, that Oduka did not obtain the consent of the other members of the family before he purported to sell this land, and that consequently the sale was invalid. The evidence on this point is not very satisfactory, but the learned Chief Justice, after consideration found that the consent of a woman Taiwo and of Sani Akinluyi Alase (the third appellant) had been obtained, and was not satisfied that is was necessary for Oduka to consult anyone else before selling.”

One would have thought that the point had been clearly resolved in that case that the land of Bashua Village belongs to the Bashua family. Counsel for the defendants, however persisted in the argument that the Divisional Court did not specifically refer in its judgment to the Bashua family as the family owning the land; that the observations of the Full Court describing the land owning family as the Bashua family should not be considered as a necessary part of the matter before the Full Court for decision and therefore not res judicata as against the defendants. The argument dearly overlooks the portions of the pleadings to which we had referred earlier on. It also overlooks the provisions of section 53 of the Evidence Act, cap 62. That section provides as follows:-

“53.Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

Counsel was asked whether there was any evidence admitted in the earlier case which was excluded in the present case. Quite rightly he replied there was none.

We have come to the conclusion that the judgments in the Divisional Court and in the Full Court in Suit No. 74/26 decided that the land in dispute belongs to the Bashua family and both sides had fought the present case on the basis that the judgments operated as estoppel per rem judicatam in respect of matters decided therein. This disposes of the appeal.

Before ending this judgment we propose to make some observations on some litigation which took place subsequent to the proceedings in Suit No. 74/26. In 1959 one of the purchasers of land from Oduka Akinluyi sued two members of the Bashua family for a declaration of title to the land she had bought, damages for trespass and injunction. The plaintiff claimed that Oduka and not the Bashua family, to which the defendants belonged was the original owner of the land. She got judgment in the High Court but on appeal the judgment of the High Court was reversed in Appeal No. FSC 376/63, Apalara Bashua and Anor v. Mrs. Margaret O. Daniel decided on the 9th April, 1964. The judgments of the Divisional Court and the Full Court in Suit No. 74/26 were before the Court in that case and had been produced as exhibits 11 and 12. Delivering the judgment of the Supreme Court, Taylor, J.S.C. observed, inter alia as follows:-

“it is true that taking certain passages alone from exhibit 11 the impression can be created that Oduka was the owner of the land in Bashua village and that certain members of Bashua family paid tribute for their holdings. One must however look at exhibit 11 as a whole with a view to discovering the ratio decidendi of the judgment.

In our view, one thing is clear from the judgment in exhibit 11 and that is that the land at Bashua village did not belong solely and personally to Oduka under native law and custom. If this judgment shows, as it does, that Oduka was not the sole owner of land in Bashua village and that he had to get the consent of some members of a family before he could validly sell, the next question with which one is faced is: What is that family to which Oduka belonged? This in our view is answered by the judgment of the Full Court in exhibit 12, which was before the trial Judge……. The rest of the judgment further strengthens the view that the land was Bashua family land and that Oduka had a general authority to sell family land In order to raise funds for medical attention.”

Confronted with this judgment, counsel for the defendants argued that the present action was already instituted and was pending when FSC 376163 was decided and that the judgment could not therefore constitute res judicata. Counsel relied for this submission on the case of Houstoun v. Marquis of Sligo (1885) 29 Ch. D. 448. We cannot accept the submission. First of all the facts of Houstoun’s case are not on all fours with those of the present case. Then there are the rather strong reservations of Pearson, J., in that case as to the propriety of deciding the case on that point alone. Estoppel per rem judicatam is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent’ court between him and his opponent. If the evidence of the res was admissible and properly admitted It becomes judicata Irrespective of the time the proceedings involving it were initiated. In Morrison Rose and Partners v. Hillman [196112 Q.B. 266 a similar argument was addressed to the Court of Appeal and was rejected. In the course of his judgment Holroyd Pearce L J. observed at p. 277 as follows:-

“1 can find no ground for creating an artificial exception from the general rule of estoppel per rem judicatam by distinguishing res judicatae that follow the issue of a writ from those which precede it. The principles which make the latter desirable have no less application to the former, and should be applied to both alike.”

In that case the pleadings were amended to incorporate the judgment which was given during the pendency of the action and pleaded as a bar. It is to be observed that in the present case the Statement of Claim was amended in order to include the judgment in FSC.376163 and plead it in bar. The decision in Morrison Rose and Partners v. Hillman follows that in Bell v. Holmes [1956] 3 All E. R. 449; [1956] 1 W. L R. 1359 which had been followed by the Federal Supreme Court in lhenacho Waned and Ors v. Nnadikwe Oduwa and Ors (1959) 4 FSC 132.

All the grounds of appeal argued on behalf of the defendants fail and the appeal is accordingly dismissed. The appellants must pay the respondents the costs of the appeal fixed at 40 guineas.

Other Citation: (1967) LCN/1362(SC)

G.B.A Akinyede And Others V Y.m. Opere And Others (1967)

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ADEMOLA, C.J.N.

This is a motion by the seven appellants who were defendants in this case in the court below, asking for leave of this court to lead additional evidence to correct the record made by the trial judge in respect of evidence given by a witness who was the third witness for the defendants.

The witness Chief Obanikoro is a prominent Lagos White Cap Chief; he was called to give evidence in the court below on a material point concerning the Yoruba law and custom of distribution of intestacy. The issue was which of the two systems, namely, distribution per stirpes (idi igi) or per capita (Ori ojori) must be adopted in distribution among the children of the deceased.

For the applicants, certain passages of the judge’s notes had been attacked as not having been correctly recorded. The two passages are as follows: – the first, under examination-in-chief reads:-

“If the family once consent to this they will be bound by it and cannot go back.”

and the second, under re-examination, are as follows:-

“ I still say that when all the members of the family agree to share their assets by one system such as ori ojori it is not open to them under the custom to go back. They will be bound by it.,,

According to Mr Akinyede, arguing the motion, the reply to the first question, If properly recorded, was-

“The family can change ff they so wish but not arbitrarily  meaning not change every time.” and that this answer was in response to a question put by the court and not in examination in chief as shown in the record.

In regard to the second passage complained of, Mr Akinyede stated that what should have been recorded as an answer in re- examination was to the following effect-

“If the family desire a change, they may make it but not chop and change as they like.”

Mr. Akinyede also complained that although the learned judge questioned the witness at length, there was nothing to show in the record that any question was put to the witness by the court.

Mr. Akingbade for the other applicants associated himself with all what Mr. Akinyede said. Both urged the Court that the justice of the case will be met by allowing additional evidence; in other words, that this court should hear for itself the evidence of Chief Obanikoro who, from the affidavit before us, was rather aggrieved at what he considerd the hostile attitude of the judge to him during his evidence; he was also concerned about the Yoruba native law and custom he was postulating and which according to his affidavit, although the record does not show it, the judge termed, at the time, as “Uncivilised and barbarous.”

For the respondents, Mr. Oseni submitted that the application appeared to go beyond calling additional evidence; in effect the court was being asked to amend the record before it. The court, he submitted should be wary to add anything to the judge’s notes except there is very strong evidence in favour of it.

It Is not in doubt that the court has an inherent power to order the record of appeal of the trial to be amended so as to comply with facts proved and the decision given – see Thynne v. Thynne [1955] 3 W.L.R. 466 referred to at p. 1675 of 1966 White Book. That however, is not the case here.

What weare called upon to do here is to reject the record made by the judge of the oral evidence of a witness on the ground that it does not represent what the witness said, and to take the evidence of the witness afresh.

As arguments between counsel developed it became evident to us that counsel on both sides either by themselves or by their juniors took notes during the proceedings in the court below. The first applicant did not, as he was entitled to do, refer to these notes in his affidavit nor did he state in his affidavit that he was relying on the notes. As the notes were in court, we examined them. We must make ft dear that the notes were not read by us for the substance they contained as the first applicant did not refer to them in his affidavit, but we were able to clear our minds on one point, namely, that the judge himself did put questions to Chief Obanikoro, as the notes on either side show.

The record is at most a summary in narrative form of what the judge understood the witness to say, and it may be to some extent inaccurate or incomplete, but we are unable to go as far as the applicants on the evidence before us, and accept it as proved that the evidence given by the witness was exactly what the applicants now stated before us. In one of the passages complained of, the first applicant himself was unable to tell us exactly what he alleged Chief Obanikoro said in the High Court. He was content to say that what the witness said was “to the following effect.” We feel it will be a very dangerous precedent for the court to accept these words as the evidence given by the witness.

We can understand the attitude of Chief Obanikoro in this matter. He is a man over 80 years of age, well educated and has given evidence on many occasions on the laws and customs of the Yoruba people. His anxiety that what he said about these laws and customs might not be misrepresented in any future proceedings in understandable.

In exceptional cases as for instance where both parties are agreed, or where there is conclusive evidence to show that what was recorded by the trial judge was not what the witness said, we shall be willing to consider exercising the inherent powers of the court to amend the record. In the present case however we are in an extremely difficult position as there is not enough evidence before us upon which we can justifiably act by expunging the evidence already taken by the judge and hearing the witness afresh.

We have no alternative but to dismiss this application.

Other Citation: (1967) LCN/1361(SC)