Musiliu I. Bashua V. Dr. Oladipo Maja (1976)

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SIR UDO UDOMA, JSC 

This appeal is against the judgment of George, J., in the High Court of Lagos, Suit No. LD/565/72, wherein Dr. Oladipo Maja as plaintiff, herein respondent, claimed against Musiliu I. Bashua as defendant, herein appellant, the following:-

“(1) Declaration of title to the piece or parcel of land situate at Bashua Street, Shomolu, Lagos State, Nigeria. (2) Order of injunction restraining the defendant from committing trespass to the said land.   PAGE| 2   (3) Damages for trespass in the sum of £100. (4) Possession of the said piece or parcel of land.”  Pleadings having been ordered, were duly filed and delivered.

In view of the submissions made to us by counsel in the appeal, and the nature of the controversy between the respondent and the appellant and the manner in which pleadings appear to have been settled, we think it expedient for the proper appreciation of the issues involved in the appeal, to set out in extenso hereunder the pleadings of the parties in the suit.    In support of his claims, the respondent pleaded as follows:- “(1) The plaintiff is a Medical Practitioner. (2) The Alashe Family of Ojuwoye became owners from time immemorial under native law and custom of a large area of land (hereinafter called “the land”) whereof the land in dispute forms a portion.

(3) The land in dispute (hereinafter called “the land in dispute”) is described on a survey plan and therein edged RED attached to a Deed of Conveyance dated 7th day of December 1971, made between Sanusi A. Bashua, J.A. Eshubi, N.A. Kekere-Ekun, Abu Amore, M. Adisa Bashua and R.A. Adewale as vendors of the one part and Musiliu I. Bashua, to wit, the defendant, as purchaser of the other part and registered as No.70 at page 70 in Volume 1325 of the Land Registry Lagos. (4) The said vendors who are members of Bashua Chieftaincy Family executed the Deed of Conveyance aforesaid for themselves and on behalf of the Bashua Chieftaincy Family of Lagos. (5) The Alashe Family of Ojuwoye referred to in paragraph 2 above in Suit No.LD/1950/1957 to the knowledge of Bashua Chieftaincy Family litigated over the land or a large area thereof.

(6) The said Bashua Chieftaincy Family acquiesced in the role played by Alashe Family in the Suit No. LD/1950/1957 and stood by with full knowledge of the proceedings in the said suit.   (7) The plaintiff acquired his right and title to areas of the land by virtue of a Deed of Conveyance dated the 13th April, 1970 registered as No.72 at page 72 in volume 1317 and another Deed of Conveyance dated the 17th January 1972 registered as No.90 at page 90 in Volume 1377 both of the Lands Registry, Lagos. (8) In several court actions, one Aina Edu represented the Alashe Family in matters pertaining to the land. (9) The Alashe Family is also known as Ifadu Alashe Family. (10) The plaintiff will rely on the following suits which pertain to the rights and interests of the Alashe Family in the land:   (a) Supreme Court of Nigeria, Lagos Judicial Division.. Suit No. 372/28 (b) -do-………………………………. “ ” 165/29 (c) -do-………………. “ ” 67/1946 (d) -do-………………………………. “ ” 272/51 (e) High Court of Lagos…………. “ ” LD/150/57 (f) Supreme Court Appeal………. “ ” SC/60/71   (11) The plaintiff’s predecessors-in-title were in possession of the land in dispute exercising full right of ownership thereon. (12) The plaintiff after purchasing the land in dispute as hereinbefore averred immediately went into possession thereof and exercised acts of ownership thereon by himself and through his servants and agents.

(13) The defendant without lawful authority has entered upon the land and committed trespass thereto by digging foundation thereon for the erection of a building or buildings. (14) The defendant will continue to commit acts of trespass to the land unless he is restrained by an order of injunction made against him by this Honourable Court. (15) The Bashua Chieftaincy Family is estopped from denying the title of the Alashe Family to the land of the said Alashe Family aforesaid by virtue of several decisions of the Supreme Court of Nigeria, Lagos Judicial Division, the High Court of Lagos and the Supreme Court of Nigeria respectively aforesaid.   (16) The land of Alashe Family is included in the area of land appearing on the plan known as Sheet No.342/912 published by the Director of Federal Surveys, Lagos relating to land at Mushin-Ikeja-Agege Districts of the Lagos State.”

The averments of the appellant in answer to the allegations in the Statement of Claim contained were in the following terms:-   “STATEMENT OF DEFENCE SAVE AND EXCEPT as is hereinafter expressly admitted, the defendant denies every allegation of fact contained in the plaintiff’s Statement of Claim as if each were set down and specifically denied.   1. The defendant admits paragraphs 1, 3, 4 but denied paragraphs 2, 5, 6, 7, 8, 9 to 16 of the plaintiff’s statement of claim and puts him to the strict proof of the various allegations contained therein. 2. The defendant states that the land the subject matter of this action belongs under native law and custom to the Bashua Chieftaincy Family from time immemorial and forms part of a larger area of land belonging to the family. 3. The said Bashua Chieftaincy have from time immemorial been in continuous and uninterrupted possession of the said land exercising all maximum rights of ownership all over the whole land to the knowledge of the plaintiff.

4. Sometimes in 1913, the Government by Notice dated 29/10/1913 acquired a large area of land including the land in dispute, and by a letter dated November 27th, 1913, Oduka claimed compensation for the Bashua Family. The defendant will rely on the letters and all documents in connection with the said Notice of Acquisition. 5. The Bashua Chieftaincy Family have had various litigations over their land and will rely on the judgment in Suit Nos.74/26, HK/63/61, SC/376/63, SC/583/65, FSC/276/63 at the trial. 6. In Suit No.IK/227/65, the Bashua Chieftaincy Family successfully brought an action against Alhaji A. W. Elias for trespass, damages and injunction, over a large area of land including the land the subject matter of this action. The defendant will rely on the said judgment and the deed of conveyance dated 2nd day of May, 1958 relied upon by the defendant in that suit.     

7. The Bashua Chieftaincy Family have been exercising open acts of ownership in possession for a long period of time over large area of land including the land in dispute to the knowledge of the plaintiff’s predecessor- in-title and the defendant will rely on the long possession by the defendant’s predecessors in title to the land in dispute. 8. By a Deed of Conveyance dated 7/12/71 and registered as No.70 at page 70 volume 1325, the Bashua Chieftaincy family sold the piece of land in dispute to the defendant. 9. The defendant went into immediate possession and have since erected a building worth over £8,000 on the land. 10. The defendant will rely on all equitable defences including laches, long possession, acquiescence, stale claim and will contend that the plaintiff’s claim is speculative and should be dismissed.”

A cursory glance at both the Statement of Claim and the Statement of Defence discloses at once that both the respondent and the appellant rooted their title and founded their acts of possession in the land in dispute in the Alashe Family and the Bashua Chieftaincy family respectively.

The manner in which the pleadings were settled by both parties calls for a brief comment although we were not addressed by counsel on that issue. We hasten, however, to assure both counsel that our decision in this appeal will in no way be influenced by any apparent defects in the pleadings.    In paragraph 10 of the Statement of Claim, the respondent merely averred that he would rely on certain numbered judgments which “pertain to the rights and interests of the Alashe family in the land”. The nature and form such reliance would take whether by way of estoppel in pais or per rem judicatam or as acts of possession was not disclosed, nor were the names given of the parties directly involved in the suits resulting in various judgments sought to be relied upon. By reason of such insufficiency of particulars, it was clearly impossible on the face of the pleadings to identify with precision the parties directly affected by the said judgments.

Furthermore, in breach of Order 32 Rule 7 of the Old Supreme Court (Civil Procedure) Rules, which still operated in the State of Lagos in 1972 when pleadings were closed, and which Rule is now Order 17 Rule 3 of the now Rules of the High Court of Lagos State, which came into operation on 1st September 1973, the Statement of Claim concluded without stating specifically the relief claimed by the respondent; nor was it therein stated that the claim of the respondent was in terms of or per his writ of summons filed in the suit.     

That, of course, was an unsatisfactory manner in which to settle a Statement of Claim filed in a suit in court in a case of this kind; and the learned trial Judge would have been justified either to strike out the Statement of Claim or order that it be amended by leave on terms, if objections had properly been raised. We think that the learned trial Judge might probably have been more inclined to take the latter course having regard to the fact that even after the close of the case of the respondent leave was granted the appellant to amend his Statement of Defence by adding five new paragraphs thereto.    But the worse offender in this respect as to pleadings would appear to be the appellant.