Busari Depoju Akande V Sidikatu Awero & Anor (1977) LLJR-SC
Busari Depoju Akande V Sidikatu Awero & Anor (1977)
LawGlobal-Hub Lead Judgment Report
G. IRIKEFE, J.S.C
After hearing arguments in this appeal, we indicated that it should be allowed, but promised to give our reasons later. This we now do.
Before the High Court of the Ibadan Judicial Division, the plaintiff, hereinafter referred to as the appellant, endorsed his writ against the respondents thus:-
“The plaintiff’s claim against the defendants is for possession of the plaintiff’s land situate, lying and being at Oke Ogunpa, Molete, Ibadan, Western State, now unlawfully occupied by the defendants.”
Pleadings were ordered and duly exchanged. The appellant’s root of title may be discovered from some of the averments in this amended statement of claim, particularly the following:-
(1) The plaintiff is the owner of the entire area verged deep “GREEN” in PLAN No. L&L/A8657 attached to this amended statement of claim. The plan is hereinafter referred to as the plan.
(2) The lands in dispute are the two areas verged light “YELLOW” inside the plan.
(3) The plaintiff and one LAWANI BAMGBADE became the owners in possession of the entire area verged deep GREEN in the plan by virtue of two deeds of conveyance to wit:
(a) No. 29 at page 29 in volume 58 and
(b) No. 41 at page 41 in volume 404 both of the Ibadan Lands Registry.
(4) By a deep of conveyance dated 5/11/61 and registered as No. 38 at page 38 in volume 487, the said Lawani Bamgbade conveyed all his interests in the land described in paragraph 1 and 3 above to the plaintiff and the plaintiff became the absolute owner.
(5) The defendants sometime ago broke and entered the lands in dispute and wrongfully laid claim to them by virtue of deed of conveyance dated 20/2/63 made in favour of the 1st defendant by one (1) Madam Adeoti Asabi Kuola and (2) Madam Taiwo Amoke Juola both of KUOLA family and compound and registered as No. 1 at page 1 in volume 634 of the Ibadan registry.
(6) The plaintiff was in possession exercising acts of ownership at the time of defendants’ unlawful entry to the lands.
(7) The plaintiff avers that the 1st defendant’s vendors have no title to the said land and the plaintiff will rely on the doctrine of memo dat quod non habet.
(8) The plaintiff will contend at the trial of this action that the said vendors of the 1st defendant are estopped from denying the title of both of Ilaji (Adelakun) family otherwise known as SHOBALOJU (Adefalu) family and the plaintiff in this action to the property in dispute and will rely upon the following proceedings and judgements in support of and as proof of this plea:-
(i) Proceedings and judgement in SUIT 81/46 and appeal therefrom up to the ADO Mr. Macleod-Smith;
(ii) The decision dated 10/3/48 given under review by Mr. Macleod-Smith (Suit 1/66/53) which culminated in FSC 245/61;
(iii) Proceedings and judgement in Native Court Lands II in Suit Nos 1/53 as well as proceedings and judgements on appeal therefrom up to the decisions of the Governor’s Court of Appeal dated 12th August, 1955;
(iv) Proceedings and judgement in Suit No. 1/85/49 before the then Supreme Court of Nigeria in RAJI SHOBALOJU and anor. Versus ADEOTI and anor;
(v) Judgement in SUIT 1/134/64 of the High Court holden at Ibadan which was delivered on 17/7/67;
(vi) The judgement and proceedings in SUIT 1/97/66 Mustafa Dairo (representing KUOLA FAMILY) and Lawani Bamgbade & 2 ors.
(9) In Suit No. 27/54 between Madam Adeoti Ashabi and Madam Taiwo Amoke against Raji Akande & 2 ors. In which PLAN No. LD 26 was used, the areas verged deep GREEN in the attched plan as well as in plan LD 26 were awarded to the plaintiff in this case and to the Ilaji (Adelakun) family alias Shobaloju (Adefalu) family.
(10) Madam Adeoti Ashabi and Madam Taiwo Amoke in Suit 27/54 above are the same persons as the 1st defendant’s vendors in this case.
(11) The area verged deep Green in Plan L&L/A8657 is the same as the area verged Green in Plan No. LD26 referred to above”.
As could be seen from paragraph 5 of the statement of claim, the respondents’ title to the dispute land derives from a conveyance dated 2C/2/63 made by two members of the KUOLA family and registered as No. 1 at page 1 in Volume 634 of the Ibadan Registry. This much was also conceded by the respondents in their statement of defence. The appellant, on the other hand, claims title through the Ilaji family (as per conveyance No. 29/29/58 – See paragraphs 2 and 8 of the statement of claim).
It seems to us plain, therefore, that the short point that calls for a determination in this appeal is, which of the two families that granted the land the subject of this dispute has a better title.
These previous court judgements admitted in evidence during the trial of this action, show that there has been considerable litigation between the Ilaji (otherwise known as the SHOBALOJU) family and the KUOLA family over a large area of land of which the precise area now in dispute formed but an integral part.
The series of actions had an inconclusive result from the standpoint of either family and this is made manifest by the zeal with which each side that lost in one court went on appeal to another, as long as the possibility of an appeal existed in law.
Few extracts from the judgements admitted in these proceedings will, in our view, help to facilitate an understanding of the issues in controversy between the parties.
In suit 81/46 (Exhibit D) before the IBADAN LAND COURT where the respondents’ predecessors-in-interest sought to evict the appellants predecessors-in-interest from land embracing the present area in dispute, a compromise verdict was recorded by the said court in these terms –
“Judgement therefore for the land in dispute for the plaintiffs (Taiwo and Adeoti) with some costs with exception of certain portion given to defendant according to the settlement made by the heads of compounds in this quarters. And the defendants are seriously warned against further encroachment. The reason why we allowed this portion for the defendants was just to repay the trouble taken by their father on the whole land, and had been granted to him since his life time. Any aggrieved party may appeal within 30 days from date”.
The matter next want on review (Exhibit E) before A.M. MACLEOD-SMITH, ESQ. Acting District Officer, who had this to say –
“The lands court, while giving judgement for the plaintiffs/respondents in this case awarded a small portion of the land to defendants/appellants as compensation for the trouble taken by their father Adefalu on behalf of Adebunmi when he was involved in various land disputes during his life time.
I have been shown the boundary fixed by the Lands Court in their judgement by the President. It is a culvert about 45 yards short of a scale marked on the right hand side of the Ijebu Road going towards Mapo. The boundary takes the line of the ditch under this culvert right up to the Kudeti stream. Thus the land on the left hand side of this boundary enclosed on the other sides by the Kudeti and Ogunpa streams would belong to defendant/appellants and the land on the other side of the boundary would belong to the plaintiff/appellants.
I regard this boundary as fair. It leaves in the hands of the defendant/appellants the land on which their house is situation and also land which they have sold to outside persons. I do not think that the native law and custom regarding inheritance would be infringed thereby.
The judgement of the Judicial Court of Appeal is therefore set aside and the judgement of the Lands Court in Suit 81/46 substituted therefore. No order as to costs. Both parties warned of their right of review by the Resident.”
On a further appeal to the Resident’s Court (Exhibit F), that court observed inter alia as follows:-
“I have taken the parties carefully through all the evidence, arguments and judgements to date, and I am satisfied that both sides now accept, and are anxious to see demarcated and enforced, the judgement of the Lands Court in Suit 81/1946”.
The Acting Resident (D. A. Murphy Eser.) then ordered thus:-
“I remit this case to the District Officer and order that the following line be staked out in the presence of the parties by a Surveyor or Survey Assistant of the District Council’s Land Office (Reference are to Plan CA7/70:-
Starting at point HA.405, thence along the right-hand (South-eastern) bank of the ditch for as far as the ditch is recognisable as a ditch; thence to Ogunpa stream in 411, 410, 409. The operation to be completed by the 15th of March, 1955, so as to take advantage of the dry season and of the fact that Macleod-Smith’s Order and Simpson’s judgement were both given in March (1948 and 1954 respectively). The District Officer to inform both parties that the boundary so staked out is the boundary agreed upon by them before me and that the Surveyor will begin demarcating it with permanent beacons within ten days of the date upon which the stakes are pointed out to them. Within five days of that date, either party may apply directly to me for a stay of this operation if they have good grounds therefore. Rights of appeal against this my order explained”.
It is interesting to note that Mr. Murphy’s Order set out above was made on 17/1/1955 and that one Josiah Oladapo Laniyonu (P.W.4) a Surveyor, prepared a survey plan (Exhibit M) pursuant to the said order on 9/3/1956. There is also evidence from exhibit “F2” to the effect that the Senior Divisional Adviser, Ibadan Division, had on 6/11/1956 in a letter called on the appellant’s predecessors-in-interest to pay into Treasury of the Ibadan Provisional Council the sum of $9.15.6d for a copy of a plan of the disputed land (i.e. Exhibit “M”).
The judgement in the Resident’s Court was not, however, the end of the matter; a final appeal was lodged to the Governor’s Court where His Excellency, T.M. Shankland, Esquire, The Officer Administrating the Government of Western Region on 12th August, 1955 commented thus:-
“There has been a long history of litigation in this matter and the difficulty has been to fix a boundary which is fair for both parties. I am satisfied the courts below have made a careful inquiry said the boundary that now stands, is as satisfactory a solution as can be devised …”
He then ordered:-
“The judgement of the Resident is accordingly affirmed with the modification that $15 costs are awarded against the defendant/respondents”.
The present action proceeded to trial and the learned judge, (Johnson, J.) after carefully examining the mass of documentary evidence produced, upheld the appellant’s claim.
The respondents being aggrieved appealed to the new defunct Western State Court of Appeal on a number of grounds, but the only ground actually canvassed that court reads:-
“That the learned Judge of the High Court erred in law in misconstruing the purport and effect of Exhibit “O”, the copy of a judgement of the Supreme Court tendered by defence and thus arrived at a wrong decision.”
In exhibit “O”, the appellant’s predecessors-in-interest had sued the respondents’ predecessors-in-interest for title, possession and injunction in respect of land subject of the litigation recounted earlier on in this judgement in the High Court of the Ibadan Judicial Division. A survey plan exhibit “T” was produced in the course of the trial of the said action, and it was the view of the learned trial judge at the close of evidence, that the boundary shown on the said plan did not clearly demarcate the land claimed by the parties so as to enable that court to relate the area in dispute to the areas previously awarded to either side as the result of the litigation which ended in the Governor’s Court.
In short, it was the view of the learned judge that, where there was uncertainty as to boundary, an action seeking a declaration of title was doomed to failure. He accordingly dismissed the claim for title and non-suited the two others.
It was argued before the Western State Court of Appeal that in as much as the appellant’s predecessors-in-interest, had failed in their quest for title before the Supreme Court in exhibit “O” against the respondent’s appellant’s predecessors-in-interest, the judgement of the Ibadan High Court in this matter ought not to stand. The submission was upheld and the appellant was non-suited.
The present appeal is against the order of non-suit made by the Western State Court of Appeal. Although a number of grounds of appeal were filed, counsel appearing on behalf of the appellant sought leave to argue them together.
Counsel’s arguments may be summarised under two heads, namely:-
(a) That the Western State Court of Appeal erred in the interpretation which it placed on the judgement exhibit “O” and in particular on exhibit “T” the plan referred to in the said judgement, which plan was neither before the lower court in this case or before the Western State Court of Appeal.
(b) That there being evidence that exhibit “O” was produced by the respondents in support of their plan of estoppel, the onus was clearly on them to produce the plan exhibit “T” to which the said judgement was tied.
The learned judge of the court of first instance found, and we entirely agree with him, that the area of land bordered in green on exhibit “L” is the same as that bordered in yellow on exhibit “M”.
As previously indicated in this judgement, exhibit “M” was the plan produced pursuant to the order of Resident Murphy in 1955. There is evidence from P.W.4 that the area shown bordered in yellow was that awarded ….to the appellant’s predecessors-in-interest, …purple was that awarded to the respondents’ predecessors-in-interest.
There is evidence from P.W.4 which, in our view, the lower court was right in accepting that the two portions in dispute shown verged in yellow on exhibit “L” fall within the area awarded to the appellant’s predecessors-in-interest as per exhibit “M”.
There is also evidence from exhibit F2 that the Resident’s judgement which led to the preparation of exhibit “M” (the survey plan) was affirmed by the Governor. Our attention has not been drawn to any provision of law which would enable the Supreme Court as at present constituted to exercise appellate jurisdiction in a matter which had been finally adjudicated upon by the Governor’s Court.
The preceding between the predecessors-in-interest originated in the old Native Court which exercised jurisdiction strictly in accordance with the terms of the warrants establishing them.
Sections 31(2) and (3) of the Native Courts Ordinance (Cap 142 Laws of Nigeria 1943) contain provisions which are relevant to the case in hand. Section 31(2) provisions that:-
“Any person aggrieved by any order or decision of a district officer, whether made or given upon appeal from a native court of first instance or upon appeal from a native court of appeal, may within 30 days from the date of such order or decision appeal therefrom to the Residents”.
Similarly, Section 31(3) provides that:-
“Any person aggrieved by any order or decision of a Resident, made or given upon appeal from a district officer or from a native court or native court of appeal may within thirty days from the date of such order or decision appeal to the Lieutenant-Governor who may in his discretion after taking such action as he may consider necessary decide the appeal without hearing the parties”.
There did not appear in the above cited ordinance any provision for an appeal beyond the Lieutenant-Governor and the position therefore at Law is that the decision dated 12/3/1955 (Exhibit F2 affirming the earlier decision dated 17/1/1955 (Exhibit F) constitutes a final decision binding on the parties.
We are therefore unable to appreciate how the decision in exhibit “O” which was an appeal to the Supreme Court in a matter originating at the High Court could reverse or modify a final decision in the Governor’s Court. Our attention was certainly not drawn to any provision of law which enables the Supreme Court to exercise appellant jurisdiction in a matter which had been finally disposed of in the Governor’s Court.
It seems to us, therefore, that both parties in this case are stopped from laying claim to land outside the area awarded to their predecessors-in-interest by virtue of exhibit F and the survey plan, exhibit “M”
The record here further shows that exhibit “O” as produced by the respondents, apparently to found plea of estoppel arising from the fact that they had succeeded in an action over a portion of the and in dispute. The plan exhibit “T” to which conference was made in the judgement was not available either at the Court of trial or the Western State Court of Appeal.
Not having had exhibit “T” before it, whatever views might have been expressed by the Western State Court of Appeal as to the feature reflected on it, could at best, amount to no more than speculation.
Learned counsel representing the respondents was clearly unable to place before us convincing grounds for affirming the decision of the Western State Court of Appeal.
We accordingly allowed the appeal and order as follows:-
(a) that the judgement and order including the order as to costs made in this matter (CAM/10/73) by the now defunct Western State Court of Appeal be set aside;
(b) that the judgement and order including the order as to costs made by the High Court of the Ibadan Judicial Division in this matter (Suit 1/15/63) be restored in full.
(c) That the appellant be allowed costs against the respondents assessed at N100 before the Western State Court of Appeal and N229 in this Court.
Other Citation: (1977) LCN/01727(SC)