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  3PLR/ 3/1960


LN-e-LR/1960/19 (SC)





MYLES JOHN ABBOTT, F.J. (Read the Lead Judgment)



EVIDENCE. – Evidence given in previous cases – Acceptability as evidence in later case – Use of in cross-examination as to credit – Application of Section 34(1), Evidence Ordinance

EVIDENCE – Plea of acquiescence – Onus on person asserting.

EVIDENCE – Previous judgment and the plea of res judicata.

LAND LAW – Acquiescence – Defence of – Onus of proof on pleader – Owner ignorant of adverseness of possession – Effect.

LAND LAW – Claim for declaration of title “in fee simple” – Conceivability of in Nigeria

LAND LAW – Proper mode of transferring family property – validity of sale of family property without the consent of other family members

LAND LAW: Native Law and Custom – Whether non-payment of rent constitute challenge to owner’s title.

PRACTICE AND PROCEDURE – Use to which pleadings in earlier case can be put to in later case.

PRACTICE AND PROCEDURE – Whether trial Judge can suggest alteration of claim – Effect of Counsel yielding to Judge’s suggestion – Propriety of – Effect.



Dingle Foot Q.C., with him V.O. Munis, for Appellant.

D.O. Coker for Respondent.


ABBOTT, F.J. (Delivering the Judgment of the Court) This is an appeal by the plaintiff against the decision of the Western Region High Court sitting at Ikeja, refusing him a Declaration of Title to certain land at Idi Araba in Ikeja District. Mr. Dingle Foot, Q.C. and Mr. V.O. Munis appeared for the appellant, and Mr. D.O. Coker for the respondent.


At the outset of the hearing Mr. Foot asked leave to file and argue additional grounds of appeal, and this was granted. Mr. Foot, in his argument, covered all the original grounds filed in addressing us on his additional grounds.


It is necessary first to point out that the plaintiff’s claim as originally formulated was for a Declaration of Title “in fee simple” according to the English legal conception of that term and during the progress of the hearing the learned trial Judge suggested, and Counsel for the plaintiff agreed, that the claim should be amended to ask for Declaration of Title under Native Law and Custom. Originally the endorsement on the Writ also included a claim for possession, but this was abandoned.


Mr. Foot at the opening of his address, submitted to us that the amendment which the learned Judge had suggested as aforementioned, should not in fact have been agreed to by Counsel for the plaintiff, and should not have been made, and the burden of his argument on this subject was that the term ‘lee simple” in Nigeria has a connotation quite different from its connotation in English Law. Mr. Foot urges that in fact the terms used here means absolute title or absolute ownership by whatever method claimed or acquired.


I have considered this matter with some care but in view of what the learned Chief Justice is going to say in a few moments I think is better to express no opinion on this last point.


It must be remembered that in English law the fee simple was in olden days the nearest approach which could be gained by an individual to the absolute ownership of land which, from the time of the Norman Conquest, became vested in the Crown. In fact, in those days a man who held what is now known in English law as a fee simple was referred to as a “tenant in fee,” thus indicating that in spite of being regarded to all intents and purposes as the absolute owner of the property he nevertheless owed certain feudal dues to the Crown or its representative. That conception in modern times has largely disappeared, so that an owner in fee simple of land in England now is for every practical purpose the absolute owner thereof and can deal with the land in any way he wishes.


For the purposes of this judgment it is necessary first to refer to additional ground 3, which, in precis, complained that the learned trial Judge placed upon the plaintiff/appellant an onus which should have been placed upon the defendant and having found that the plaintiff failed to discharge his onus, dismissed his claim. It is abundantly clear from the record and from the exhibits tendered that first of all the land in dispute was originally owned by the Alashe Family and that by a Deed of Conveyance in favour of the appellant the Alashe Family purported to transfer to him the whole of their interest therein.


The respondent’s Defence attempted to establish that he had acquired the land from the Alashe Family, but the learned trial Judge found that this attempt failed. Very strong support for this finding is to be found in Exhibit ‘B’, a letter written by the respondent to the appellant, in his capacity as attorney for the Alashe Family. This reads as follows:


Dear Sir,




I resolve to apply for ratification of the land purchased by my father from Messrs AjaiAlashe and Oyatogun whose sale was unknown to the family.


I attached the plan herewith for your guidance.


(Sgd.) Lawanson Aborishade.


It is abundantly clear from that letter that the respondent knew his title was defective by reason of the alleged sale to him being unknown to the Alashe family. It only remains to say, on this subject, that the requested ratification was never assented to or carried out not surprisingly so in view of Exhibit ‘A’, the conveyance to the appellant of the same land, having been executed on 19th May, 1947.


In his Defence the respondent also pleaded laches, undue delay, long possession and acquiescence, and the learned trial Judge went at some length into this question and found that the respondent’s father had been in possession since 1911, not as customary tenant but under an alleged right of purchase, and that this should have provoked to action the important members of the Alashe Family who were not consulted over the sale to the respondent which lack of consultation was the reason for the learned Judge finding that the respondent had failed to trace his root of title back to the Alashe Family. With respect, I do not follow the learned Judge’s reasoning here, having regard to Exhibit ‘B’. I do not see why or how the Alashe Family should have been provoked to action if they did not know of the alleged sale, at any rate until 1949, when Exhibit ‘B’ was written.


The learned trial Judge goes on to say that those important members of the Family slept on their rights for 36 years” and transferred that state of inaction to the appellant when the land was conveyed to him. The respondent put on the land a tenant and in 1951 an action was brought against this tenant and another man, by the present appellant, for a Declaration of Title to the land. This action was unsuccessful. The present proceedings began in April 1954 and the learned Judge came to the conclusion that the defendant’s possession being adverse to that of the Mashe Family, and that Family having failed to take any action for over 40 years, it would at the time of the trial have been inequitable to allow them to rely on Native Law and Custom to support their claim. The appellant’s claim in the Court below however, allege that the tenant in question was, in fact, put on the land by his predecessor in title as a customary tenant and that the 1951 action was taken because he and another tenant refused to pay rent. In that action the tenant referred to the respondent as his landlord.


The last words of the learned Judge’s judgment are these:


‘The plaintiff having failed to discharge this onus placed on him, 1 dismiss this case……..:’


and these words follow immediately the passage in the judgment dealing with the inaction of the Alashe Family for the period of years mentioned. Thus it seems dear that in the mind of the learned trial Judge it was for the appellant to prove that there had been no acquiescence, while of course the rules of pleading require that the defence of acquiescence having been set up by the respondent it was for him to prove it.


One further point needs mention with regard to the defence of acquiescence. This defence was founded on two main bases (1) the purchase of the land by the respondent’s father in 1911, which the Judge held to be void, and (2) the non payment of rent. I agree with Mr. Foot that nonpayment of rent by itself by no means necessarily shows a challenge to the title of the landlord or owner.


There is, however, one important matter to which 1 must refer. The learned trial Judge in more than one passage in his judgment evidently accepted as evidence before him certain evidence given in the 1951 case, the proceedings in which were put in as Exhibit ‘C’ and this, with respect to him, was clearly a serious misdirection. This misdirection of itself renders necessary an order for a retrial, because it is impossible to say that the learned Judge in coming to his decision was not influenced by the evidence in the 1951 case, which was not, of course, evidence before him. In fact, the reverse appears to me to have been the case. I think the learned Judge was considerably influenced by the evidence in the 1951 case.


The passages in the judgment to which I would particularly refer are:


(a)     Aina Edu, who was a witness for the appellant, gave evidence in the 1951 case and was cross-examined on the contradictions between her evidence in that case and that given before the Court below. Commenting on this, the learned Judge says:


“I prefer to believe her evidence given 5 years ago (i.e., in the 1951 case) that Ajayi or Ajayi Arubo alias Ajayi Alashe was the head of the family, and that she succeeded him as head of the family.”


(b)     Dealing with the question of whether the land was vacant or not, the learned Judge says:


‘The evidence of Aina Edu showed that there was someone on the land at the time of purchase for she said ‘I said in the 1951 action that I sold the land to the plaintiff because the tenants were not paying me rent. We did not tell the plaintiff this’. This evidence of the existence of tenants on the land at the time of purchase is also supported by paragraphs………. of the statement of claim.”


It will be observed that Aina Edu did not give the evidence quoted above in the present case. She merely admitted having given that evidence five years before and did not, in the Court below, aver its truth or falsity. Yet the learned Judge accepted it as evidence before him.


(c)     Having concluded his review of the evidence, the learned Judge says: …. The 1951 case was made an exhibit by virtue of Exhibit “C”… The fact that I have accepted the evidence of Aina Edu in the former proceedings in 1951 cannot cure this defence (in the title of the respondent). The receipt which will be found at p.52 of the record, Exhibit ‘C’ gives the effect that the land being sold was the property of Ajayi Alashe and Oyatogun in their personal capacities since there is no mention of family property.”


True it is that, in the last instance in particular, the learned Judge, in accepting as evidence before him the evidence given in the 1951 case used that evidence in a manner adverse to the respondent, in whose favour he ultimately gave judgment, but that does not alter the legal position which this Court has stated on numerous occasions which is that “evidence” given in a previous case can never be accepted as evidence by the Court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that The “pleadings” in an earlier case may, however, be referred to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other to the later case. The “judgment” in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of res judicata, but it can only be used there provided the incidents necessary to support such a plea are fully observed.


On balance, however, in the present case, the learned Judge used the evidence in the 1951 case more weightily against the appellant than against the respondent. What I have said is sufficient to dispose of this appeal which must be allowed. The case will be remitted to the High Court of the Western Region for retrial. The costs of the first trial will abide the result of the retrial and the appellant must have the costs of this appeal assessed at 60 guineas.


In conclusion, I have observed with considerable concern an event to which I have referred at the beginning of this judgment. At the beginning of the hearing, the learned Judge saw fit to suggest that the appellant amended his claim, which was originally one for a declaration of title in fee simple, to one for a declaration of title under native law and custom, and counsel for the appellant quite understandably but not, I think, wisely, agreed to the learned Judge’s suggestion and the amendment was made. In my view, with respect to the learned Judge, the suggestion ought neither to have been made by him nor adopted by counsel for the appellant.


Had the claim remained in its original form it might have been possible for this Court to enter judgment for the appellant on his claims. As it is, there must now be further delay. (which has been, for various reasons, already considerable) and expense in concluding this litigation. In that connection I would venture to suggest to the Chief Justice of the Western Region that he may find it possible to accelerate the retrial and the Chief Registrar of this Court will be directed to communicate with the Chief Registrar of Western Region High Court, asking that the views of this Court be placed before the Chief Justice of that Court.




I agree with the judgment that has just been delivered.


I only wish to add that it might have been possible for us to enter judgment for the appellant for a declaration of title in fee simple despite the fact that his claim as amended is now for a declaration under native customary tenure, but our research has brought us into contact with conflicting authorities in our taw Reports as to the power of the Court whether the precise nature of the declaration asked for must be granted or it could be varied according to the evidence before the Court. Two conflicting views, out of a few come to my mind in the cases Emegwara v. Nwaimu, 14 W.A.C.A. 347 and 348, and Chief Oloto v. John, 8 W.A.C.A. 127.


In the judgment read out we have expressed the view that if a family is the absolute owner of land, the totality of the family interest in the land may be transferred if the Head and all members of the family agree. Judges have used different epithets to describe this interest; fee simple, fee simple absolute, absolute title, absolute ownership, etc.


A clarification of the whole position is desirable and it is hoped that this Court will have the opportunity of doing so very soon.


Hedges, C.J. (W.R.):

I concur.


Appeal allowed: Order for retrial.


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