James Fakorede & Ors V. Attorney-general Western State (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal dismissing an appeal against the judgment of the High Court, Ibadan, (Ayoola, J.) and affirming the said judgment.

The appeal arose out of Suit No. I/110/65 in the High Court, wherein the claim of the plaintiffs, herein appellants, against the defendant, now respondent, was for a declaration that the plaintiffs are not bound by the terms of the Deed of Lease, the particulars of the registration whereof would be set out hereafter, and that the plaintiffs are entitled to determine the tenancy of the Government of Western Nigeria by six months’ notice given in that behalf.

The facts of the case as found by the learned trial Judge have been fully and clearly summarised by the Western State Court of Appeal in its judgment. Normally, it would not have been necessary for us to travel through the whole length again, but in view, however, of the issues canvassed before us and the fact that the decisions of the High Court and of the Western State Court of Appeal turned on the evidence and on the pleadings iled in a previous case – Suit No. I/136/57, we consider it unavoidable to examine in some detail the history of the litigation over the land concerned in the appeal. Indeed Suit No. I/136/57 like the present one on appeal appeared to have been decided on the pleadings.

The dispute over the land, the subject matter of this appeal, dates back to 1957 when by a petition of right the plaintiffs claimed the sum of 42,000 pounds as compensation due to them in respect of about 842.962 acres of land alleged by them to be their property and as forming part of a larger piece or parcel of land, the subject matter of acquisition by the Government of Nigeria. By the fiat of the Attorney-General of the then Western Region, the petition was referred to, and subsequently became Suit No. I/136/57 in the High Court, Ibadan.

During the pendency of that suit, by an order of the court, on the application of the plaintiffs, both the Olubadan of Ibadan and the Ibadan District Council were on 21st August, joined as 2nd and 3rd defendants respectively, the Attorney-General remaining therein as the 1st defendant. Thereupon the parties in the suit were:

“1. James Fakorede)

2. S. A. Bakare)
3. Ashiru Oriola) Petitioners

(For themselves and on behalf)

of other claimants)

And

1. The Attorney-General,)

Western State ) Respondents

2. The Olubadan of Ibadan)
3. The Ibadan District Council)

Thereafter pleadings were ordered, duly filed and delivered but only exchanged between the plaintiffs and the 1st defendant. Indeed, after delivery of the Statement of Defence by the 1st defendant, the plaintiffs filed and delivered on two occasions what was described and headed as “Further Pleadings”. This aspect of the matter is very important as the subsequent “Further Pleadings”, as would be seen shortly departed fundamentally and materially from the original claim of the plaintiffs as set out in their original Statement of Claim.

For the purpose of this appeal, it should be noted that in their original Statement of Claim dated 3rd May, 1958, the plaintiffs had averred, among other things, that the action was instituted by them in a representative capacity, that is to say, for themselves and on behalf of all other joint owners consisting of fifteen individuals, the names whereof were set out in the Statement of Claim, of a tract of land known as “Old Government Acquisition No. B, Moor Plantation, Ibadan”, measuring and containing some 842.962 acres which was then being used by Government as Agricultural Experimental Station and whereon were erected offices and residences for students and officers; that from time immemorial their ancestors were the acknowledged owners and in actual phyical possession in accordance with Yoruba native law and custom of all the said land known as Government Acquisition B, Ibadan; that they were all born on the land and had been in peaceful and undisturbed possession of the same until they were forcibly ejected therefrom between the years 1903 and 1904 and their hamlets and villages burnt to ashes by Government; that neither their ancestors nor they were informed of their right to compensation in respect of the said land and none was in fact paid to them; that their persistent demand for compensation proved of no avail except to elicit the information that unknown to them, the land aforesaid had been acquired by Government for which purpose a formal notice dated 8th August, 1931 was published in Gazette No. 60 of 5th November, 1931. The plaintiffs then claimed the sum of 42,000 pounds as compensation to which they said they were entitled at the rate of 50 pounds per acre in respect of 842,962 acres of the land alleged by them to be their property acquired by Government.

The 1st defendant, in his Statement of Defence dated 4th July, 1958, after traversing certain parts of the averments contained in the plaintiffs’ Statement of Claim, in effect admitted that the land known as “Acquisition B” contained approximately 849.962 acres; that the same was acquired from and granted to Government for the use of the Crown by one Okunola, the Bale of Ibadan, Aminu Ayodabo and Akanmu the Council of Ibadan, who did so on behalf of themselves, their heirs and successors and that the Chief and people of Ibadan as lessors to the Government of Nigeria for a term of 99 years as from 1st January, 1934 at an annual rent of one shilling, if demanded, for which purpose a Government Notice dated 8th August, 1931, was published in Gazette No. 60 of 5th November, 1931. The 1st defendant then averred that title of the Crown to the land in question was based on a Deed of Lease dated 1st November, 1934 and registered as No. 20 at page 20 in Volume 318 in the Lands Registry at Ibadan, the said deed of lease having been subsequently confirmed and reinforced by a Certificate of Title and dated 28th June, 1957 and filed as No. 77 at page 77 in Volume III of the Lands Registry at Ibadan that prior to the acquisition and the grant of the Certificate of Title the land, Acquisition B, formed part of a vast area of land containing some 5000 acres demised to Government for 99 years as from 27th January, 1912 under several leases; that since then, the Government had been in peaceful and undisturbed possession of the whole area of land without the payment of annual rent to anyone and without in any way acknowledging the plaintiffs as having any title, interest or right in and over the said land; that it was only in 1930 that the Government decided to replace those several leases and to acquire the land, the subject matter in dispute, and did so.