Paulina A. Daniel & Anor V. A. A. Iroeri (1985) LLJR-SC

Paulina A. Daniel & Anor V. A. A. Iroeri (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C. 

This appeal is concerned with the estate of late John Saint Matthew Daniel. The land, subject-matter of the proceedings is situate at Ibitoye Street, Ilupeju, in the Mushin District of Lagos State.

The two parties in the dispute claim to derive title from his Estate. The Plaintiff’s (now the Respondent) case was that the land was part of the land granted to one Victor Olayiwola Saint Matthew Daniel by virtue of an Agreement between the Administrator-General and the children of the deceased and which “forms part of the portion appropriated to and vested in him”.

The statement of claim averred that by a registered deed of conveyance dated 4th March, 1961 the land was sold and conveyed to one Babington Adeniyi Haashrup, who sold it to the plaintiff by virtue of another deed of conveyance dated 11th July, 1966. It alleges that since 1953 he had been in possession and had erected a building on it In accordance with the building plan approved by the 2nd defendant the Ikeja Town Planning Authority.

Sometime on or about 12th September, 1964, the Defendant wrongfully entered upon the land, demolished the building purporting to act on the authority of a Statutory Notice issued by the 2nd defendant to demolish the said building. The Respondent instituted these proceedings in consequence of the demolition claiming against both the Appellant and the Ikeja Town Planning Authority, the sum of N2,000.00 (Two thousand Naira) special and general damages for trespass and for an order of injunction. The Respondent denied that the land formed portion of the land allocated to Victor Olayiwola Saint Matthew Daniel. Her case was that it was part of the parcel granted and conveyed to her by the said Administrator General under a scheme of distribution of the estate of her late father.

She produced in evidence a certified true copy of the deed of conveyance and of the Court order which authorised the Administrator-General to distribute the estate. She pleaded that her entry on the land was lawful and in exercise of her right of ownership. She testified that the building was demolished in compliance with the Notice issued by the Ikeja Town Planning Authority, and as the owner of the land, she complied with the order. It was not in dispute that the Planning Authority had the statutory power to issue the Order and there was no suggestion or finding that the Notice was issued in bad faith.

It was also not in dispute that that Administrator-General was invested with the power to distribute the estate amongst beneficiaries of the Estate of the said John Saint Matthew Daniel deceased, through whom both parties claimed to have derived title to the land. The question which has to be answered was as between Victor Olayiwola Saint Matthew Daniel and the Appellant to whom was this land granted by the Administrator-General The Agreement (Exhibit P9) was not the issue in this case, and if it was, the onus was on the Plaintiff who relied on it to prove that the land in dispute was part of the land allocated to Victor Olayinka Saint Matthew Daniel, and not to the appellant whose title is a direct grant from the Administrator General.

The trial judge found that both the Appellant and the Respondent failed to trace title to the Exhibit P9. He however found that the Respondent was in prior possession of the land and therefore was entitled to maintain an action for trespass against the Appellant. He accordingly entered judgment in his favour for N2,000.00 damages for trespass and in addition made order of injunction against her. The claim against the Ikeja Town Planning Authority was dismissed.

Before the Court of Appeal, the 1st Defendant, as Appellant, contended that the trial judge was in error in holding that she did not establish a better title than the Respondent. It was contended that the deed of conveyance by the Administrator-General in her favour assured her a better title as against the Respondent. It was further submitted that the trial judge was in error in relying on the Agreement (Exhibit P9) between the Administrator-General and some of the children of her late father. And in addition it was contended that the Court of Appeal was equally in error as the trial court in considering an irrelevant piece of evidence of one Body-Lawson in another case, that is, Suit No. IK/114/66 of 1st April. 1969 between one Latifu Sonsanya and Muse Sunmola.

The issue before this Court is whether the trial court and the Court of Appeal were right in their respective decision to the effect that the Defendant failed to prove a better title than the Respondent to the land in dispute since the Respondent did not postulate his case on a title other than that of Victor Olayiwola Saint Matthew Daniel.

Chief Williams for the Appellant has contended that the trial judge misdirected himself in taking the view that the Respondent, in order to succeed, must trace her title to the Agreement (Exhibit P9). He submitted that all that was required was proof that the parcel of land was conveyed to her by the Administrator-General and that it included the land in dispute. In the absence of any prior grant to any other person, she was entitled to judgment. The trial judge had himself found that the judgment in Suit No.IK/114/966 was irrelevant to the proceedings, and was not one of the matters which the learned trial judge relied upon for his decision. The Respondent did not file a cross-appeal or give Notice of Intention to rely on it to support the decision of the trial court and therefore it was not open to the Court of Appeal to rely on it to support the judgment of the trial court.

I am of the view both contentions are well founded. It must be borne in mind the only reason why the trial court found that the defence failed was because the Respondent (sic) did not relate the land conveyed to her to the Agreement, Exhibit P9. The trial judge was of the erroneous view that both parties were relying on the Agreement – Exhibit P9, whereas, it was only the Respondent who pleaded it in paragraph 4 of the Statement of Claim, and produced it in evidence. The Appellant denied the averment. The trial judge said:-

“It had been agreed between the said children by way of family agreement inter alia that the property hereinafter conveyed should be vested in the beneficiary as part of her share of the residuary estate of the Intestate. The “family agreement” referred to in the recital did not specifically mention the Agreement, Exhibit P9, one cannot therefore see the nexus

(1) between Exhibit P9 and Exhibit P11 and

(2) between the land purportedly conveyed to 1st defendant in Exhibit P9 and that shown in plan in Exhibit P11

As already noted, Exhibit P9 had no plan annexed to it. The question then is: Where did the plan in Exhibit P11 originate from Whose land is shown there From the evidence before me, it had not therefore been established that land in Exhibit P11 is her share of her father’s estate; the legal estate in respect of which vested in the Administrator-General by reason of the intestacy”.

The learned trial judge however seemed to have overlooked the evidence of P.W.4 – Bukola Alebiosu, an Inspector of Properties in the Administrator-General Office. He tendered Exhibit P9 and also Exhibits P10 and P11. Exhibit P10 was the order of court in which a scheme of Distribution of the intestate real estate was approved. It was dated 23/11/54. He testified that Exhibit P11 was executed in favour of the Appellant by the Administrator-General in respect of the property at Ilupeju. Victor Olayiwola Saint Matthew Daniel, through whom the Respondent purported to have derived his title, did not say that the land in dispute was part of the land allocated to him, although his late mother, who was his attorney, sold it during his absence abroad. The Appellant herself testified, and this was not challenged, that it was part of the land granted to her and identified it on the plan attached to her own deed of conveyance.

Neither Victor Olayiwola Saint Matthew Daniel nor any other child claimed the land or sought an order of Court to rectify Exhibit P11, or to excise the land in dispute from any part of the parcel of land granted to the Appellant. The Administrator-General had not said he was mistaken on granting the Appellant the land or sought to rectify Exhibit P11. Exhibit P11 to all intent and purpose remained valid to assure unto the Appellant the entire parcel of land thereon described. The Court of Appeal also was in serious error to impugn the Appellant’s title by relying on the evidence of Body-Lawson, who was not a witness at the trial, as contained in the judgment in Suit No.IK/114/66. Mohammed, J.C.A., stated

“I am satisfied that the learned trial judge was right in holding that the appellant failed to establish better title to the land when he observed as follows:-

“The 1st defendant has not established any better title than the plaintiff, as the legal estate of the land in dispute still vests in the Administrator-General. It is clear that the Agreement for the distribution of the estate of St. John Matthew Daniel was not executed by the Administrator-General, and there being no plan of the whole area distributed, annexed to the said document in the manner described in the Schedule to the Agreement, the 1st defendant has failed to show any better title than the plaintiff.”

Having failed to establish a better title than the Respondent, the case then revolved on the one who was up till the time of the alleged trespass in possession.”

The Plaintiff was not a party to the proceedings nor was the Defendant. The land in the case is different from the land in dispute in this case. The judgment could not estop either of the parties to these proceedings nor could the evidence of a witness in the case. The rule is that estoppel must be mutual between the parties. It was wrong for the Court of Appeal therefore to introduce an irrelevant issue and rely on it, particularly when the trial judge had found it was irrelevant to the issue. The evidence and issues were different and the reasons for the decision were different. The evidence of Body-Lawson could not in the circumstances be admissible in the present proceedings.

See Jemi Alade v. Lawanson Aborisade 5 F.S.C. 167 and Nahman v. Odutola 14 WACA. 381. It was held that excepting the preconditions enumerated in Section 74 of the Evidence Act are satisfied, the evidence of a witness in a different case is not proof of the fact of the matter. Body-Lawson was not a witness before the Court, no foundation was laid as required by law to make his evidence as summarised in the judgment admissible.

The important point is that Victor Olayiwola Saint Matthew Daniel did not say that any of the land conveyed to the Appellant per Exhibit P11 included portion of his own land. No other witness was called to give like evidence. In fact it was not the Respondent’s case, even though he pleaded that he would be relying on the judgment. In my view, the Conveyance Exhibit P11 ex facie is a valid instrument assuring to the Appellant the entire hereditament described in the deed of the legal estate of John Saint Matthew Daniel.

As between her and the Respondent, she proved a better title to the land in dispute and her entering upon it was sufficient to defeat any prior right of possession which the Respondent, a mere squatter, had. See Olayioye v. Osha (1969) 1 All NLR. 281, Olumide v. Ayodele (1969) 1 All NLR. 233. It was not suggested that Kole Saint Matthew Daniel who put the Respondent first in possession in 1953 had any right to the land or was the person to whom the land was subsequently granted by the Administrator-General.

I will allow the appeal and set aside the decisions of the trial court and that of the Court of Appeal, which affirmed it, and I substitute an order of dismissal of the Plaintiff’s claims. The Appellant is entitled to the costs of the trial, the Court of Appeal and of this Appeal which I fix at N350.00, N200.00 and N300.00 respectively.

A. G. IRIKEFE, J.S.C. (Presiding): I agree completely with the lead judgment just read by my learned brother Coker, J.S.C. I had earlier seen it in draft. I also would allow the appellant’s appeal, and adopt all the orders made in the lead judgment aforesaid, inclusive of the order as to costs.

M. L. UWAIS, J.S.C.: I have read in draft the judgment read by my learned brother Coker, J.S.C. For the reasons which he has given I entirely agree that this appeal should he allowed. Accordingly the appeal is hereby allowed and the decisions of the High Court and the Court of Appeal are set-aside.

I endorse the order as to costs as contained in the said judgment.

A. G. KARIBI-WHYTE, J.S.C: I have had the privilege of a preview of the judgment of my brother D.O. Coker, J.S.C., just read. I agree and for the same reasons as my brother D.O. Coker, J.S.C., that the appeal succeeds.

Respondents are entitled to the costs of the trial in the High Court. Court of Appeal and in this Court in the sum of N350, N200 and N300 respectively.

S. KAWU, J.S.C: I have had the advantage of reading in draft the judgment of my learned brother, Coker, J.S.C. which I have just read and I find myself in complete agreement with him on all the issues raised in the appeal. I will also allow the appeal and set aside the decisions of the lower courts, and substitute an order of dismissal of the plaintiff’s claim. I adopt the order on costs in the lead judgment of my learned brother, Coker, J.S.C.

SC.4/1984