3PLR – BABALOLA V. BABALOLA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BABALOLA

V.

BABALOLA

FEDERAL SUPREME COURT OF NIGERIA

27TH JUNE, 1956.

OTHER CITATIONS

WACA 69/1955

BEFORE THEIR LORDSHIPS:

SIR STAFFORD FOSTER SUTTON, F.C.J. (Presided)

SIR JOHN VERITY, Ag. F.J. (Read the Judgment of the Court) WILLIAM HENRY IRWIN, Ag. F.J.

 

BETWEEN

  1. OLAJIDE BABALOLA
  2. BANDELE ASHCROFT (MRS.)
  3. AGBEKE ROBBIN (MRS.)
  4. TAIWO BABALOLA
  5. ADEGOKEBABALOLA
  6. OLATUNJI BABALOLA
  7. TITILAYO BABALOLA (Suing by her next friend Okunlola Babalola)

AND

  1. HANAH MAGBAGBEOLA BABALOLA
  2. JOHN YOUNIS

 

REPRESENTATION

A.M.F. AGBAJE – for the Appellants.

  1. SOETAN – for the 1st Respondent.
  2. H. LAMBROU – for the 2nd Respondent.

 

MAIN ISSUES

LAND LAW: Declaration of title under customary law and consequent relief – claim that property was held in “seized in fee and in possession” – when considered not proved – need for party asking for declaratory relief over land to prove their case – effect of failure thereto

CHILDREN AND WOMEN LAW: Succession and property inheritance under customary law – assertion of female succession line under customary law – right of parties whose asserted interests over property arose when they were infants – relevant considerations

PRACTICE AND PROCEDURE – APPEAL:- Issues for Determination – Need for same to be disclosed by pleadings in lower court

PRACTICE AND PROCEDURE – COURT:- Federal Supreme Court – Duty to restrict itself to the determination of issues disclosed by pleadings of parties

PRACTICE AND PROCEDURE – JUDICIAL PRECEDENT:- Obiter dicta – Meaning of – When a trial judge’s observation in regard to a matter before would be deemed to be no more than obiter dicta

PRACTICE AND PROCEDURE – PLEADINGS:- Need for parties to align their pleadings with proper reliefs – where findings of court cannot support grant of relief sought by party – whether court is duty bound to dismiss same

 

 

 

 

MAIN JUDGMENT

VERITY, AG. F.J. (Delivering the Judgment of the Court):

In this case the appellants sought a declaration of title to certain property in the town of Ibadan, a further declaration that a lease thereof granted by the 1st respon­dent to the 2nd respondent is void and an order for possession.

 

By their statement of claim the appellants averred that their father was at the date of his death in 1933 “seized in fee and in possession” of the prop­erty in question and that as his surviving children they are the owners. The 1st respondent on the other hand averred that the property was acquired by one Alice Adineke, her mother and the grandmother of the appellants. She further averred that in accordance with the native law and custom she had taken over the property and managed it for the benefit of all concerned. It would appear that at the date of their father’s death the appellants were in­fants, as indeed was the youngest at the date of this action.

 

The appellants were unable to bring proof of the acquisition of the land by their father and relied upon evidence of the exercise by him during his lifetime of acts of ownership over many years. This cannot be held to be con­clusive, however, in view of the fact that there is documentary evidence which discloses that the deceased himself stated to a District Officer engaged on certain enquiries in the matter, that he had inherited the land, although it is true that on another occasion he stated that he had acquired it under an ag­reement which, however, he was unable to produce. In the view of the learned trial Judge, there was no oral evidence on either side upon which he could rely and in these circumstances, I do not think that it could be said to be unreasonable for him to conclude that he could not grant the appellants the relief they claimed, and I think he was right to dismiss their action.

 

There it might be thought the matter would rest, but in considering the evidence in the case the learned Judge made certain observations to the ef­fect that in his view the land in dispute was the property of the appellant’s grandmother, now inherited by her children and grandchildren under native law and custom, and further that in his view the 1st respondent had been guilty of no breach of her duty as trustee of the property in granting the lease to the 2nd respondent. In view of the nature of the appellants’ claim as set out in their pleadings these were not issues which fell to be determined in this suit and the learned Judge’s observations in regard thereto cannot, in my opinion, be regarded as other than obiter dicta.

 

On the footing of these observations, however, Counsel for the appel­lants submitted that, the learned Judge, having found that they had some in­terest in the land, even though an interest entirely inconsistent with the in­terest claimed, should have proceeded to set aside the lease which, he sub­mitted, the 1st respondent had no power to grant under native law and cus­tom. This issue he asked the Court now to determine.

 

I think it would be quite wrong for us to attempt to do so. It would mean disregarding the nature of the appellants’ claim as disclosed by the pleadings and substituting therefor a claim of an entirely different nature involving is­sues that were never fully gone into in the Court below. It would necessitate further evidence as to the native law and custom on the subject of the powers of a senior member of the family in the circumstances of this case, and, in all probability, it would be necessary to join other parties interested. It is, of course, quite impossible that the whole action can be re-fashioned in this way at this stage, or perhaps at any stage of the proceedings. It is an example of the importance of keeping parties to their pleading, unless in proper cases and at a suitable stage an amendment thereof can justly be made for the purpose of determining the real issue between them.

 

I would, therefore, dismiss the appeal, the appellant to pay the respon­dents’ costs. The appellants were, I think, fortunate that in the Court below costs were ordered to be paid out of the rents of the property.

 

I wish to add that in my opinion it is most regrettable that efforts to set­tle the dispute before trial were unavailing. The property in question is a town lot; the appellants have not succeeded in establishing their sole interest therein, and it is therefore probable that ten or more persons have interest. The 2nd respondent is a person who has been approved as lessee by the then Chief Commissioner exercising powers under the Native Lands Acquisition Ordinance (Cap. 144) delegated to him by the Governor, and the instrument has itself been so approved. The learned Judge was of the opinion, upon the evidence before him, that the best rent obtainable was charged, and the 2nd respondent has erected on the land building at a cost of £5,000. There is surely in all this a foundation upon which a just and equitable settlement could be established in the interest of all parties without further litigation.

 

FOSTER SUTTON, F.C.J.: I concur.

 

IRWIN AG. F.J.: I concur.

 

Appeal Dismissed

 

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