Emmanuel Jiaza V. Hassan Bamgbose & Anor. (1999)
LAWGLOBAL HUB Lead Judgment Report
O. EJIWUNMI, J.S.C.
This appeal is from the Court of Appeal (Lagos Division). The proceedings were commenced in the High Court of Lagos where the plaintiff claimed against the original defendant Busari Bamgbose for general damages for trespass into his property lying and situate at 29 Oyebo Street Araromi, Apapa, possession of the said building and premises and perpetual injunction restraining the defendant his servant and agents from continuing his acts of trespass.
At the trial court, the learned trial Judge duly ordered pleadings. Consequently, pleadings were filed and exchanged. The defendant also filed and served an amended statement of defence with leave. The plaintiff filed a reply to the original statement of defence. But before then the plaintiff, with the leave of the trial court, had the claim for possession withdrawn and it was duly struck out.
During the hearing before the trial court the parties called witnesses and several documentary exhibits were tendered and admitted. The case for the plaintiff is that in 1959 he obtained a leasehold of a piece of land situate and lying at No. 29 Oyebo Street, Araromi, Apapa from the Oluwa Chieftaincy family. The plot of land was allegedly granted to him through one Chief Asafa Oluwa who was described as the representative of the family. The plaintiff claimed he made an initial payment of 60.00pounds (N120.00) and also paid the annual rent of 1.10pounds (N3.00). He claimed that he paid the annual rents for the period 1959 to 1962 and obtained a receipt. After the land was shown to him he cleared the bush and had his sign board on it. In 1960 he commenced the construction of a building on it consisting of 11 rooms and one shop in accordance with an approved building plan. By the time he left Lagos in 1967 for the East because of the political disturbances that raged in the country at the lime, the building had been constructed to window level. Before he left, he had in 1963 caused the land to be surveyed and obtained a survey plan. exhibit C. Upon his return to Lagos sometime in 1970, he discovered that the defendant had trespassed into his properly. He immediately challenged the defendant as to his right to the land; but the defendant ignored him. Though he reported the matter to the Police. he had to commence this action against the defendant to assert his right.
The case for the defendant would appear to be that he has no interest of any kind in the parcel of land at No. 29 Oyebo Street, Araromi, Apapa, the subject matter of this litigation. He claimed that his own plot of land is at No. 33 Oyebo Street which he acquired in 1969 from Chief Oluwa of Lagos. The land so acquired was, according to the defendant. vacant at the time of his acquisition. Later he obtained a deed of lease from the family. Following necessary payments to the family, he commenced building a house of 12 rooms and one shop on the land. Throughout the period during which the house was under construction in 1969, he claimed that no one disturbed him or his contractor on the land. The building has since been completed and he has been living there with his family.
At the end of the trial of this matter before the High Court, the learned trial judge reviewed the evidence before him. Following the address of learned counsel appearing for the parties, the learned trial judge delivered a considered judgment.
By that judgment, the trial court upheld the plaintiff’s claim having formed the view that the land in dispute is the same as claimed by the parties in spite of the different descriptions given by the parties as to the location of the land. The learned trial Judge further formed the view that the lease to the defendant was executed on the 26th October, 1970. He also held that the plaintiffs structure was on the land when the defendant obtained the deed of lease and that it was the plaintiff’s structure that he eventually built upon. The learned trial Judge therefore took the view that the defendant could not have obtained his interest in the land through the deed of lease without notice of the prior equitable interest of the plaintiff. The learned trial Judge then held that the deed of lease relied upon by the defendant and which was registered a couple of years after the plaintiff was let into possession cannot override the plaintiff’s equitable interest.
Being dissatisfied with the judgment and orders of the trial court the defendant appealed to the Court of Appeal (Lagos Division).
The learned Justices of the Court of Appeal after due consideration of the issues raised before that court concluded in their judgment that the plaintiff failed to establish how he became seised of the disputed land. On the other hand, it was held that as the defendant had established by evidence on the record how he was granted the lease of the disputed land, and by whom, the learned trial judge ought to have found that fact in his favour. The judgment and orders of the trial court which were made in favour of the plaintiff were therefore set aside.
As the plaintiff was not satisfied with that judgment of the Court of Appeal (Lagos Division) he has appealed to this court. Pursuant thereto four grounds of appeal were filed on his behalf. However, with the leave of this Court the plaintiff (who shall from henceforth be referred to as the appellant) filed an amended Notice of Appeal consisting of three grounds of appeal. Subsequently, his learned Counsel, H. O. Ajumogobia Esq., filed and served the appellant’s brief. The defendant died during the pendency of this appeal and was, by virtue of the High Court of Lagos State substituted by Hassan Bamgbose and Seliatu Bamgbose, who are now the respondents. P.O. Jimoh Lasisi Esq., filed on their behalf a respondent’s brief.
At the hearing before this Court learned counsel appearing for the parties adopted and placed reliance on their respective briefs of argument.
Learned Counsel also made further submissions in elaboration of the arguments in their respective briefs. I will in the course of examining the issues identified in the briefs consider also the submissions made before the court.
In the appellant’s brief of argument, the following are the issues identified for the appellant for the determination of the appeal:-
(1) Whether the learned Justices of the Court of Appeal were not in error in holding that the case dealt exclusively with the acquisition or transfer of family land by lease, when the appellant’s claim was based on trespass and found upon his possession of the said land.
(2) Whether the existence of a Power of Attorney in favour of Ashafa Oluwa and/or the extent of the said Ashafa Oluwa’s authority contained in the said Power of Attorney were matters which were put in issue by the pleadings.
(3) Whether the learned Justices of the Court of Appeal were not in error in holding that the respondent acquired a valid lease from the Head of the Oluwa Chieftaincy family free of a prior equitable interest in favour of the appellant.
Arguing the first issue for the appellant, the learned Counsel’s contention as can be gathered from the brief and oral argument is based on his assertion that the Court below set up a case other than that pleaded by the parties. It is his submission that the case which the appellant pleaded was that he was in possession of the property and that the respondent committed trespass by entering the land without his consent. It is not, argued learned counsel to the appellant, a case that is concerned with the alienation of family land without the concurrence of the Principal members of the family. The case of the appellant it is stressed, is that of possession of the disputed land prior to that of the respondent. It is therefore argued that the Court below fell into error for determining the case upon the basis of ownership as identified above. It is submitted therefore that as a court is not competent to give judgment contrary to that formulated by the parties, the appeal ought to be allowed. In support of this proposition, the following cases are cited Adeniji v. Adeniji (1972) 1 All NLR (PI. I) 298; Nigerian Housing Development Society v. Mumuni (1977) 2 SC 57; Commissioner for Works Benue Stafe v. Devcon Development Society Ltd. (1988) 3 NWLR (Pt. 83) 407; Akinfolurin v. Akinnola (1994) 3 NWLR (Pt.335) 659. In any event, it is further argued for the appellant that upon the evidence before the court, and which was accepted by the trial court, the Court below should have upheld the judgment of the trial court. Learned counsel for the appellant urged this court to reverse the judgment of the court below in favour of the appellant. This the court can do having regard to the principles established in the following authorities:- Amakor v. Obiefuna (1974) 3 SC. 67; Akanu v. Okunude (1978) 3 SC 129; Fubunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299 and Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578.
In response to the above contentions made for the appellant, respondents’ counsel takes the view that the court below was not wrong to have considered the competing titles of the parties to the disputed land. The argument advanced for the respondents is that the basis of the action the appellant instituted lies in his pleadings.
By his pleadings the appellant had claimed in trespass to land coupled with an order of injunction restraining further trespass on the disputed land. Having regard to such pleadings the issue of who had proved title to the disputed land must first be settled before the court could properly decide the question as to who then was in rightful possession of the disputed land. The following authorities are, it is claimed, in support of that submission. Abotche Kponuglo v. Adja Kodadja (1933) 2 WACA 24 (The Privy Council Judgments) (ed. Olisa Chukwura) 255 at 259; Okorie v. Udom (1960) 5 FSC 162 at 165: (1960) SCNLR 326 at 330 and Amako v. Obiefuna (1974) 1 All NLR (Pt.1) 119 at 128.
It is in my view manifest that the resolution of the question raised by this issue must commence with the pleadings filed by the parties. For that purpose I wish to refer to paragraphs.3, 4, 5 & 6 of the appellants statement of claim, and paragraphs 2A,.3 &.3A of the amended statement of Defence of the respondents. In paragraphs 3, 4, 5 & 6. appellant in his statement of claim pleaded thus:-
(.3) The plaintiff was and still is at all material time the owner in possession of the land and 12 roomed building all situate at No. 29 A Oyebo Street, Araromi, Apapa.
(4) In 1959, the plaintiff acquired the said land by way of customary lease from Chief Ashafa Oluwa representing the Chief Oluwa and family for the initial payment of 60pounds and an annual rent of 1.10Pounds.
(5) The plaintiff has since the said 1959 paid his annual rent to the said customary owners. The copies (sic) rent payment receipts are attached and marked Exhibit “A-A1″.
(6) The said property situate at 29, Oyebo Street thereon is bounded as described in approved plan No. EA.27/1-23/60; copy of which is attached and marked Exhibit ‘¢ B”.
By paragraphs 2A, 3 & 3A of Respondents’ amended statement of Defence the respondents pleaded thus:-
(2A) The defendant denies paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 15 of the plaintiff’s statement of claim on which strict proof is required and will in particular contend at the trial that Chief Ashafa Oluwa mentioned in paragraph 4 of the said statement of claim was never at any time Chief Oluwa of Lagos.
(3) In January, 1969, the defendant acquired the land known as 33, Oyebo Street, by way of Customary lease from Chief Sulaiman Babatunde Ajasa Oluwa, the Chief Oluwa of Lagos and Apapa and the family for initial payment of 116 (one hundred and sixteen pounds) and thereby for annual rental of 5pounds Receipt for 116 (one hundred and sixteen pounds) attached and marked exhibit “A”.
(3A) The defendant avers that if at all any land was ever leased out to the plaintiff in that locality at any time, it is not the one validly leased to him by the Oluwa Chieftaincy Family and on which he had erected his building.
It does not need a lot of study to see from the above pleadings of the parties that the issue of title to the disputed land was put directly in issue.
It is pertinent also to refer to the reply to the statement of defence filed by the appellant. In his reply the appellant again pleaded, inter alia, that the disputed land surveyed for him in 1963 is the same land which the 1st respondent described as No. 33 Oyebo Street Araromi. Apapa. As the parties have directly joined issues on title to the land, it is my respectful view that the Court below was right to have considered whether the appellant had duly established his title to the disputed land.
I have duly considered the arguments proffered for the appellant in his brief ‘and the oral argument that the Court below was wrong to have considered and resolved the issue of title to the disputed land. But his argument cannot in my respectful opinion be accepted having regard to the settled decisions of this Court on this aspect of the law.
First, it must be borne in mind that as parties are bound by their pleadings the fate of their case therefore depend upon what they have alleged in them, See Emegokwue & Ekpenyong & ors. v. Chief Ayi (1973) 3 ECS CR41 (1973) 1 NMLR 372; Kalu Njoku & ors v. Ekwu Eme & ors. (1973)5 SC 293; National Investment and Property Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 All NLR 138 at 142; George v. Dominion Flour Ltd. (1963) 1 SCNLR 117.
Secondly, where, as in this case, the appellant had raised the issue of title, then it became his duty to establish his title. I think that the Court of Appeal was right to have considered whether the appellant had established his title to the disputed land. And it seems to me that having regard to his pleadings, the only recourse that the Court below had was to consider whether on the records the appellant duly established that the disputed land was properly leased to him by the Oluwa Chieftaincy family as he had pleaded. It is after such a title had been established in his favour that the land which he claimed had been leased to another person. i.e.The 1st respondent, would he have a chance to succeed against the 1st respondent. See Okorie v. Udom (1960) 5 FSC 162. 165: (1960) SCNLR 326 at 30 and Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119 where this Court held as follows:-
“Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff needs to prove is that he has exclusive possession or he has the right to such possession of the land in dispute. But once a defendant claims to be the owner of the land in dispute, title to it is put in issue and, in order to succeed. The plaintiff must show a better title than that of the defendant.”
The Court below was also right to consider the incidents of the sale or lease of family land, it being common ground between the parties that the land in dispute is the filmily land of the Oluwa Chieftaincy family. I therefore agree entirely with the court below when it stated that alienation of family land to wit, that a sale or lease of family land without the concurrence of the Head of family is void whereas the sale or lease of same by the Head of family without the concurrence of the principal members of family is voidable. See Ekpendu v. Erika 4 FSC 79: (1959) SCNLR 186: Oyebanji v. Okunola (1968) NMLR 221: Akerele v. Atunranse (1968) I All NLR 201 and also Akinfolarin v. Akinola (1994) 3 NWLR (Pt.335) 659.
Learned counsel to the appellant has stressed in his argument that the principles enunciated in Ekpendu v. Erika (supra) is inapplicable to the instant case. I think that argument is misconceived.
Even if the appellant was right in his contention that the principle in Ekpendu v. Erika is not applicable to the instant case, he has to prove that he duly acquired the leasehold interest in the disputed land. It would be recalled that his claim to the disputed land rests on his evidence that the interest he acquired in the disputed land was through the Power of Attorney granted to one Chief Ashafa Oluwa.
That being his contention, the appellant ought to lead evidence in support of that claim. As it happened, the appellant did not call any evidence in that regard. The Power of Attorney under which he allegedly acquired his leasehold interest in the disputed land was not tendered. Indeed he admitted under cross-examination that the Power of Attorney was not in his possession. and the donee of the said Power of Attorney, Chief Ashafa Oluwa was not called to give evidence on his behalf in relation to the alleged leasehold interest that was granted to him in respect of the land in dispute.
It is of course settled law that cases are, in a civil suit, won upon a preponderance of evidence. It follows therefore that a plaintiff in such a case has the burden of establishing his claim upon relevant and credible evidence; evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand. See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt.107) 101 at 113; Mogaji v. Odofin (1978) 4 SC. 91; Onwuka v. Ediala (1989) 1NWLR (Pt.96) 182; Ekpo v. Ita (1932) 11 NLR 68. From what I said above, it is my view that the appellant has not established by any credible evidence his claim to the land in dispute having regard to the principles enunciated above. In the result, this appeal fails and it is dismissed in its entirety. The Judgment and orders of that court below are hereby affirmed. The respondents are awarded costs in the sum of N10,000.00 only.