3PLR – ALHAJI SANNI SHAIBU V. J.O. BAKARE

Published by Law Nigeria Admin at September 24, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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ALHAJI SANNI SHAIBU

J.O. BAKARE

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 14TH DAY OF DECEMBER, 1984

SC.115/1983

3PLR/1984/9 (SC)

OTHER CITATIONS

(1984) NSCC 858 2701

BEFORE THEIR LORDSHIPS

MOHAMMED BELLO, JSC

DAHUNSI OLUGBEMI COKER, JSC

ADOLPHUS GODWIN KARIBI-WHYTE, JSC

SAIDU KAWU, JSC

CHUKWUDIFU AKUNNE OPUTA, JSC

BETWEEN

ALHAJI SANNI SHAIBU Appellant(s)

AND

J.O. BAKARE Respondent(s)

REPRESENTATION

Chief F.R.A Williams, S.A.N. (with him F.R.A. Williams, (Jnr) – For Appellant

AND

Mr. AO. Ayanbadejo – For Respondent

MAIN ISSUES

ACTION – PLEADINGS: Whether the trial court has a duty to reject evidence which is contrary to the pleadings
PRACTICE AND PROCEDURE – ACTION – PLEADINGS: Whether parties are bound by their pleadings
ACTION – PLEADINGS: Whether the evidence must be in line with the pleadings and go to prove the averments in the pleadings.
DAMAGES – DAMAGES FOR TRESPASS: Whether the trial judge will resolve the issue of competing titles in an action for damages for trespass
EVIDENCE – BURDEN OF PROOF: Where issue is joined on pleadings, on whom does the burden lies?
JUDGMENT AND ORDER – JUDGMENT FOR DECLARATION OF TITLE: Whether a judgment for declaration of title is a judgment in rem
LAND LAW – PROOF OF TITLE: Effect of failure of a party who claims a declaration of title to land to prove his title
LAND LAW – DECLARATION OF TITLE TO LAND: Whether an action for declaration of title to land is an important method for determining the legal right of parties.

MAIN JUDGMENT

COKER, J.S.C. (Delivering the Leading Judgment):

This appeal arose from the decision of the Court of Appeal, dismissing the appeal of the defendant against the judgment of Beckley J., sitting in the High Court of Lagos State, at Ikeja. On the 18th day of November, 1977, he gave judgment in favour of the plaintiff for declaration that he is the owner under Yoruba native law and custom to the piece of land at Ipaja Road, Ikeja and more particularly described on a plan No. W.406/61 marked by four boundary pillars Nos. 1535, XR.1533, XR.1534 and A.220. In addition, he awarded N50 damages for trespass, and an order of injunction with N500 costs. The defendant (hereinafter described as the appellant) appealed to the Court of Appeal, which on the 18th June, 1981, by a majority decision (Ademola and Kutigi JJ.C.A., Mohammed J.C.A. dissenting) dismissed the appeal and affirmed the decision of the trial court. Not satisfied with the majority decision, he has further appealed to this Court.

Chief Williams, S.A.N., for the appellant, was granted leave to substitute three new grounds of appeal for the six original grounds.

The two grounds which he argued, read as follows:

“(1) The Federal Court of Appeal erred in law and on the facts in failing to observe that the plaintiff has failed to prove the title pleaded by him in his statement of claim.

Particulars of Error

(a) there is no satisfactory evidence that the distribution of the real estate of Jacob Sanni Bakare was carried out with the consent of all his children; in any event the evidence of the plaintiff on this point though supported by exhibit 7, was contradicted by P. W. 4 who said that it was the executors of J.S. Bakare who carried out the distribution;

(b) the allegation in the statement of claim that a portion of the land of Jacob Sanni Bakare was given to the plaintiff and his brother (J.A. Bakare) though supported by the evidence of the plaintiff, was contradicted by the evidence of the only brother of the plaintiff who gave evidence Emmanuel Oladipo Bakare (P.w.4);

(c) Exhibits 1 and 2 tendered by the plaintiff himself show that title to the entire real estate of J.S. Bakare was vested in the personal representatives of his last surviving executor or trustee and accordingly the plaintiff’s claim to be owners of the land in dispute ought to have failed;

(d) the evidence of the plaintiff that he was permitted by his brother, J.A. Bakare, to use the plot in dispute for his own purposes was not pleaded and went to no issue and ought to have been ignored by the courts below.

(2) The Federal Court of Appeal erred in law in granting the plaintiff’s claim for declaration of title or damages for trespass or injunction.
Particulars of Error

(a) On the evidence put before the court by the plaintiff it is clear that he has failed to prove that he has received a conveyance or vesting assent from the executors of J.S. Bakare or from the personal representatives of his last surviving executor.

(b) It follows that the plaintiff has no title or right to exclusive possession over any portion of the real estate of the late J.S. Bakare.

No argument was advanced in the brief and before this Court on the third ground, which is the general ground on the findings of fact.

In order to appreciate the argument put forward by the appellant, it is necessary to refer to the pleadings of the plaintiff (hereinafter described as the respondent). Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the statement of claim, which are relevant, read:

“3. The land in dispute forms portion of large parcel of land conveyed to one Jacob Sanni Bakare, late of 29 Abeokuta Road, Agege under and by virtue of a deed of conveyance dated the 21st day of September, 1944 and registered as No. 50 at page 50 in Volume 657 of the Register of Deeds kept at the Lands Registry, Lagos.

The said Jacob Sanni Bakare died at Agege on the 22nd day of December, 1952, leaving him surviving 8 children one of whom is the present plaintiff.
The plaintiff says that his father exercised maximum act (sic) of ownership and possession by building a family house on the parcel of land portion of which land is the parcel of land in dispute.
The plaintiff further says that after his father’s death, his properties were distributed amongst his children under native law and custom, that the land in dispute was given to him and his brother J.A. Bakare.
The plaintiff says that by an arrangement between him and his brother, he was permitted to use the land for his own purpose and accordingly he submitted and got an approved building plan in respect of the land in dispute.
The plaintiff further says that his family received compensation for portion of the land bought by their father in 1944 when the government acquired the said portion sometimes (sic) ago.
The plaintiff avers that his family sold portion of their father’s land to Mr. Dania, Messrs Oseni and Layiwola and Alhaji Dankani who have built houses on the portions sold to them.
The plaintiff says that when he found the defendant sometimes (sic) in 1973, trespassing on the land in dispute, he protested, and warned him verbally to desist from his acts of trespass.”

On the other hand, the defence pleaded in paragraphs 2, 3, 4 and 5 as follow:

“2. The defendant is not in a position to deny or admit paragraphs 7 and 9 of the statement of claim and puts the plaintiff to the strictest proof thereof.

The defendant is the freehold owner of the parcel of land claimed by him along Agege Bye-Pass, Agege by virtue of a deed of conveyance dated 16th August 1974 and registered as No.2 at page 2 of volume 1465 of the Lagos Land Register.
All land in the area including the portion claimed by the defendant was vested in the Olabua Ohunfa Otapo family as original owners from time immemorial.
The defendant’s predecessors in title remained in effective possession of all their land including defendant’s land exercising maximum acts of ownership thereof farming, leasing and selling portions thereof for several years without let or hindrance.”

At the trial, the plaintiff gave evidence in line with his pleading; how his late father bought the land in 1944 from the accredited representatives of Otapo family, who later executed in his favour, a deed of conveyance dated 21st day of September, 1944. Evidence was also adduced to the effect that his father took possession of the land, built a house on it, sold portions thereof during his life time and planted a grapefruit tree which was still standing there.

His father J.S. Bakare, died on the 22nd day of December, 1952 leaving a will which was proved by the two executors named therein, who have since died. He was survived by eight children on whom his properties devolved according to Yoruba native law and custom. One of the plaintiff’s witness was Emmanuel Oladipo Bakare, a pensioner and one of the eight surviving children of J. S. Bakare. He testified how his late father bought the land and of the various acts of ownership which he exercised on it after purchasing it, and of his own acts, after the death of their father. For example, he testified to selling part of the land to one Alhaji Dawuani, who built a house on the land adjourning the parcel of land in dispute.

The plaintiff in the course of his testimony tendered probate and the will of his late father, Jacob Sanni Bakare, (exhibit 1 and 2) which were received in evidence without objection. It will be observed that these two documents were never pleaded as they ought to if they were to be relied upon by the plaintiff in proof of his title. Since they were not pleaded, the trial judge should, and in fact rightly, ignore them as they went to no issue which had to be tried in the proceedings. The issue was a straight fight between the title of J.S. Bakare, deceased, and that of his vendor’s family, the Otapo family. The issue then is whether the plaintiff proved to the satisfaction of the trial court that the Otapo family had divested itself of its title at the time of the alleged grant to the defendant in 1974. If the Otapo family had effectively divested itself of its title, it had nothing more to grant to the defendant.

In Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 All N.L.A. (Pt. 1) 207, the point arose whether the trial judge was right in rejecting a deed which was not pleaded, but referred to in a pleaded document. At page 216, the Supreme Court said:

“We are of opinion that the reason which was given by the learned trial judge in rejecting the conveyance when he held that it was irrelevant to the issue under inquiry by him was cogent and unassailable. It was unanswerable. On the facts and circumstances of this case the document was completely irrelevant to the issue in controversy between the parties. It was therefore inadmissible since the purpose for seeking to tender it in evidence was not to establish that the plaintiff was not illiterate. The contention of the learned counsel for the defendants on this point is therefore untenable. The Western State Court of Appeal was in error in ruling that the document was relevant and admissible.” See also Lemomu v. Ali Balogun (1975) 1 All N.L.A. 30.

The issue posed for trial as settled in the pleadings was whether the Otapo family had any title to the land in dispute, in 1974, when it purported to convey portion of the land previously sold by the family to the appellant, for if as at that time it had no further right or title, then it had no title to grant the appellant. In other words, did the respondent prove that his late father succeeded to the title of the Otapo family? The trial judge accepted as true the evidence given by the respondent how his father bought the land in 1944 and in the same year obtained a conveyance of the land (Exh. 4) from members of the Otapo family, represented by Dada Oya, Ogunsanrin and Alimi Otapo. The original purchase receipt (Exh. 3) was also received in evidence. The trial court found as a fact that respondent’s father took possession of the land after he bought it and exercised various acts of ownership.

In fact, there is no appeal against these findings. It is difficult to see how appellant could have attacked these findings as his own witness (D.W.1), Lamidi Afunku, in his evidence-in- chief said:

“I know the father of the plaintiff Jacob Sanni Bakare. Jacob Sanni Bakare bought a portion of land from our family. It was a long time ago. It would be around 1930. When he first bought the land there was no conveyance.”

It was shown, and the court found, that the land in dispute was part of the land which was sold by the Otapo family to Bakare, the father of the respondent. Further, it was found that the children of Bakare succeeded to the property after his death and exercised various acts of ownership over it after his death. The Otapo family having divested itself of its title to the land had nothing further to grant or convey to the appellant.

Chief Williams has argued that the title of the respondent was defective in that since Jacob Sanni Bakare died testate and probate of his will was granted to the executors, the property devolved on them as trustees of the estate and only they could grant plaintiff or any of the children possession of the land. He referred to section 46 of the Administration of Estate, Law (Lagos State), which provides that the personal representative may permit any beneficiary to have possession before executing deed of assent. I have already expressed the view that the argument is irrelevant, since that was not an issue before the trial court. The trial court in my view was right to have taken no cognisance of the will and probate, since neither of the two parties pleaded them or even relied on them for their title to the land.

The next point argued by Chief Williams, is that the trial court gave judgment declaring title for the respondent under native law and custom, when the title of Jacob Sanni Bakare was in fee simple. This, he argued, was because the land was conveyed in fee simple to him (J. S. Bakare) by a deed. In other words, the title under native law and custom which the Otapo family had was transformed into a fee simple interest by virtue of the deed. For that reason, a declaration under native law and custom was inappropriate. I am unable to appreciate the relevance of the distinction which learned counsel was urging upon the Court. First, the respondent claimed “declaration of title in fee simple or under Yoruba native law and custom…”

The respondent had not yet received any deed of conveyance himself. After the death of his father, (excluding the will and probate which was never pleaded) the property devolved on his children according to Yoruba native law and custom. See Kareem v. Ogunde (1972) 1 All N.L.A. 72 p.80 where this Court stated:

”The law reports are replete with cases which establish firmly the entitlement of a Yoruba person’s children to succeed in Lagos to his property on his death intestate and the locus classicus is the case of Lewis v. Bankole (1908) 1 N.L.A. 81, where at p.105 Osborne C.J. observed as follows-

‘The first claim of the plaintiffs was for a declaration that they are entitled as grandchildren of Mabinuori deceased in conjunction with the defendants to their family compound ….. Though I am unable to make a declaration in the exact terms asked by the plaintiffs in the first part of their claim, I have endeavoured above to indicate what I consider to be the rights given by customary native law to the plaintiffs, as members of the family with respect to the family compound, which I declare to be the property of the family of Mabinuori deceased.’

See also Miller Bros. v. Abudu Ayeni etc. (1924) 5 N.L.A. 42 (Van Der Meulan J.); Caulcrick v. Elizabeth Harding and Anor. (1926) 7 N.L.A. 48 (Tew J.); Catherine Mary Sogunro-Davies v. Disu Sogunro and Ors. (1929) 9 N.L.A. 79 (Berkeley J.); Ebun Ogunmefun v Oluremi Ogunmefun and Ors. (1931) 10 N.L.A. 82 (Webber J.). The evidence given by the plaintiffs in this case was more than sufficient to support their claim to entitlement and the learned trial judge was wrong to have ruled against them on this point”.

As to the argument whether the estate granted to J.B. Bakare was a fee simple title and not a title under native law and custom, I am unable to see the relevance of the argument. In Kabiawu v. Lawal (1965) 1 All N.L.A. 329 at page 335, this Court per Coker, J.S.C., stated:

“The appellant had claimed a declaration of title under native law and custom and had clearly established such a title. It is true that a great deal of confusion had been introduced into this matter by the conveyance exhibit C which had purported to convey to Abdulai Jinadu Kabiawu an estate in fee simple. But it is clear that the conveyance never recited that Oseni Falade had a fee simple and there is no dispute that an owner of land under native law and custom can transfer his absolute interest and describe the entirety of such interests as conveyed by him as an estate in fee simple. See per Berkeley, J., in Balogun etc., v Saka Chief Oshodi (1931) 10 N.L.A. 36 at pp. 47 and 48, and also Privy Council in Oshodi v. Balogun and Others (1936) 4 W.A.C.A. 1 at p.2; see also Griffin v. Talabi (1948) 12 W.A.C.A. 371. It is manifest that Oseni Falade and Arinola by exhibit C could and did transfer only the entirety of the interests which they themselves possessed in the land. The appellant is therefore entitled to the declaration which he claimed.” See also Brigbo & 9 Ors. v. Eyin Pessu & Anor. (1974) 1 All N.L.R. (Pt. 2) 20 p.47.

The Court found respondent was in possession of the land when the appellant entered. At the time he trespassed, he had no title, even the so called deed of conveyance was valueless since his grantors had nothing left to grant – Nemo dat quod non habet – a purchaser can never get what his vendor himself did not possess; See Lasisi & Anor. v. Tubu & Anor (1974) 1 All N.L.R., (Pt. 2) 440 p.444. As between the two parties, the respondent, obviously, had a better title than the appellant who had none. The trial judge was right to take judicial notice of the Yoruba native law and custom in Lagos, and, the effect of distribution of the property amongst the children of Bakare, and the subsequent agreement between respondent and his brother. These facts as found by the trial judge clothed him with sufficient title as against the appellant, a complete stranger to the estate of Bakare, deceased. It is necessary to observe that the declaration granted is binding only between the parties and those who identified themselves in their battle of ownership. It is not binding on those who are not parties or who never lent support to any of them. As it is generally said, a judgment for declaration of title is not a judgment in rem. The declaration granted in this judgment binds only the parties and their privies. As a decision inter parties, it operates as an estoppel, in favour of, and against, parties and privies only, not third parties or strangers. See Duchess of Kingston’s case (1776) 2 Smith Leading Cases (13th Edn.) 644 per De Grey, C.J. at pp.644-645; Gray v. Lewis (1873) Ch. App. 1035 per Mellish L.J. at pp.1059, 1060;” it unquestionably is not the general rule of law that a judgment obtained by B, is conclusive in an action by B against C. On the contrary, the rule of law is otherwise – a judgment inter parties is conclusive only between the parties and those claiming under them.

The point was made that whereas paragraphs 7 and 8 of the statement of claim averred that the land was distributed amongst the children of J.S. Bakare, after his death, and plaintiff gave evidence in line with what he pleaded, his brother, Emmanuel Oladipo Bakare (P.w.4) testified that the land was allocated to the plaintiff by the executors of their father. It was then argued that in view of the contradiction, he was not entitled to the declaration sought in the court. I do not think the argument is sound. For the trial judge in rejecting the argument said the point was irrelevant to the issue before him as it was not raised in the pleadings. He further accepted, as he was entitled to do, the evidence of the plaintiff, as opposed to that of P.W.4, in its entirety, in arriving at his decision. Whether the children distributed amongst themselves or the executors did, the fact remains that the plaintiff was claiming the title of his late father, and none of those concerned with his estate was opposed to his claim.

None of the two executors, who were already dead, or any beneficiary of the estate of the late father, is a party to the proceedings and their interest if any, remains unaffected by the judgment. I am unable to see how the manner in which the respondent derived title to part of the estate could be the concern of the appellant, who is a complete stranger to the estate. It could have been otherwise, if the appellant was deriving title through the same estate of J.S. Bakare. Then and only then, would their respective titles be a material issue. Before concluding my judgment, I wish to observe that even if I had accepted the submission of Chief Williams that the evidence disclosed that the title of J.S. Bakare, a fortiori, the respondent, was in fee simple and not under native law and custom, I would have adopted the course which the Supreme Court took by amending the judgment awarding respondent the correct title he was entitled by the evidence. See Brigbo and Others v. Eyin Pessu & Ors. (1974)1 All N.L.A. at page 46. In the case, the plaintiff had claimed a declaration of “possessory title”; the court said:

“It is conceded in effect by the appellants themselves that the learned trial judge would have been justified in granting to the plaintiffs a declaration of title under native law and custom simpliciter. In Jemi Alade v. Aborishade (1960) F.S.C.167, the Federal Supreme Court decided in effect that a court, indeed a High Court, is entitled to grant to a plaintiff the type of title which by his evidence he has proved in awarding him a declaration.

In the case in hand, the plaintiffs by their amended writ claimed a declaration of title simpliciter. If they had in those circumstances, as indeed that was the case here, established a particular type of title, then the learned trial judge would have been entitled so to characterise the title which he had declared in their favour. We are in no doubt whatsoever that the plaintiffs in the court below did establish their claim to a declaration of title under native law and custom. They should have got that…”

In this case, the trial court awarded plaintiff title under native law and custom. In my view, the trial court was right. The claim before the trial court was in the alternative, declaration of title in fee simple or in accordance with native law and custom.

In the final result, as I find no merit in this appeal, I would dismiss the appeal with costs fixed at N300 to the respondent. The judgment of Beckley J. is hereby further affirmed.

BELLO, J.S.C.: I had a preview of the judgment delivered by my learned brother, Coker, J.S.C. For the reasons so ably stated in the judgment, the decision of the Court of Appeal cannot be faulted. The findings of the learned trial judge, which was confirmed by the Court of Appeal, is unimpeachable. The Otapo family had sold the land in dispute to the late Bakare in 1944 and upon his death in 1952 his children including the respondent succeeded to his estate including the land in dispute. Having divested itself of the land since 1944, the Otapo family could not thereafter confer any title to the land in the appellant by the purported sale to him in 1974. In effect, the appellant bought nothing and his entry onto the land constituted trespass.

The appeal is accordingly dismissed with N300 costs to the respondent.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the reasons for judgment in this appeal just read by my learned brother Coker, J.S.C.; I am unable to agree entirely with the conclusions and the reasons for dismissing this appeal. I therefore here below give my reasons for coming to a different conclusion only in respect of the claim for declaration of title.

This is an appeal against the majority judgment of the Court of Appeal Division, Lagos, (Ademola, Kutigi, JJ.CA, and Mohammed, J.CA dissenting) wherein the judgment of Beckley J. sitting at Ikeja in the Lagos State High Court was affirmed and the appeal against that judgment dismissed. In this court, Chief Williams, SAN. was granted leave to substitute three new grounds of appeal for the six original grounds filed with the notice of appeal. However in arguing, the learned Senior Advocate relied only on two of these grounds, namely grounds 1 and 2. He therefore abandoned the third ground of appeal, which is the general ground. I therefore hereunder immediately reproduce the two grounds argued.

(1) The Federal Court of Appeal erred in law and on the facts in failing to observe that the plaintiff has failed to prove the title pleaded by him in his statement of claim.

Particulars of Error

(a) there is no satisfactory evidence that the distribution of the real estate of Jacob Sanni Bakare was carried out with the consent of all his children; in any event the evidence of the plaintiff on this point though supported by exhibit 7, was contradicted by PW.4 who said that it was the executors of J.S. Bakare who carried out the distribution;

(b) the allegation in the statement of claim that a portion of the land of Jacob Sanni Bakare was given to the plaintiff and his brother (JA Bakare) though supported by the evidence of the plaintiff, was contradicted by the evidence of the only brother of the plaintiff who gave evidence Emmanuel Oladipo Bakare (PW4);

(c) exhibits 1 and 2 tendered by the plaintiff himself show that title to the entire real estate of J.S. Bakare was vested in the personal representatives of his last surviving executor or trustee and accordingly the plaintiff’s claim to be owners (sic) of the land in dispute ought to have failed;

(2) The Federal Court of Appeal erred in law in granting the plaintiff’s claim for declaration of title or damages for trespass or injunction.

Particulars of Error

(a) On the evidence put before the court by the plaintiff it is clear that he has failed to prove that he has received a conveyance or vesting asset from the executors of J.S. Bakare or from the personal representatives of his last surviving executor.

(b) It follows that the plaintiff has no title or right to exclusive possession over any portion of the real estate of the late J.S. Bakare.

These were the grounds also considered in the brief of the appellant. The substance of the contention of the appellants in the two grounds of appeal, summarily stated, is that the respondent having failed to prove the title pleaded in his statement of claim, the learned trial judge in the High Court ought not to have granted the claim for declaration of title, and the Court of Appeal was therefore wrong to affirm the judgment of the High Court and to have dismissed the appellant’s appeal against that judgment.

On the 26th April, 1974, plaintiff hereinafter referred to as the respondent, issued a writ of summons claiming from the defendant, hereinafter the appellant, as follows –

(i) Declaration of title in fee simple or under Yoruba native law and custom to the piece or parcel of land situate lying and being near Ipaja Road, Agege, Ikeja Division of Lagos State.

(ii) N100.00 damages for trespass committed by the defendant, his servants and or agents on the said land.

(iii) An injunction restraining the defendant, his servants and agents from committing further acts of trespass on the said land.

The annual rental value of the land in dispute is N20. It is pertinent to state concisely how this claim came about. Respondent, one of the eight children of J.S. Bakare, is claiming that the land in dispute is his share of the estate of J.S. Bakare given to him and his other brother on a distribution of the estate by the family in accordance with native law and custom. Appellant claims to have bought the land in dispute from the Otapo family and that the land was conveyed to him by virtue of a deed of conveyance dated 16th August, 1974 and registered as No.2 at page 2 Volume 1465 of the Lagos land register.
The comprehensive story of the land in dispute and how respondent claims to have derived his title appears in respondent’s statement of claim and his evidence and that of his witnesses in court. Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the statement of claim aver as follows:

The land in dispute forms portion of large parcel of land conveyed to one Jacob Sanni Bakare, late of 29 Abeokuta Road, Agege under and by virtue of a deed of conveyance dated the 21st day of September, 1944 and registered as No. 50 at page 50 in Volume 657 of the register of deeds kept at the Lands Registry, Lagos.
The said Jacob Sanni Bakare died at Agege on the 22nd day of December, 1952, leaving him surviving 8 children one of whom is the present plaintiff.
The plaintiff says that his father exercised maximum acts of ownership and possession by building a family house on the parcel of land portion of which land is parcel of the land in dispute.
The plaintiff further says that after his father’s death, his properties were distributed amongst his children under native law and custom, that the land in dispute was given to him and his brother JA Bakare.
The plaintiff says that by an arrangement between him and his brother, he was permitted to use the land for his own purpose and accordingly he submitted and got an approved building plan in respect of the land in dispute.
The plaintiff further says that his family received compensation for portion of the land bought by their father in 1944 when the government acquired the said portion sometime ago.
The plaintiff avers that his family sold portion of their father’s land to Mr, Dania, Messrs Oseni and Layiwola and Alhaji Dankani who have built houses on the portions sold to them.
The plaintiff says that when he found the defendant sometime in 1973, trespassing on the land in dispute, he protested, and warned him verbally to desist from his acts of trespass.

In his evidence respondent stated that the original owner of a large parcel of land bought by his late father which includes the land in dispute was the Otapo family. He stated that his father died testate and that probate of the will have been granted. The land bought from the Otapo family was conveyed to respondent’s father by three principal members of the Otapo family, namely Dada Oya, Ogunsanrin and Alimi Otapo. The land was also surveyed by his father.

The land was conveyed to respondent’s father in 1944. The original deed of conveyance was with an executor of the will of respondent’s father who had since died. Not being able to trace the original, respondent obtained and tendered certified true copy of the conveyance. Grant of probate, the will attached, purchase receipt of the land, and certified true copy of the conveyance were admitted in evidence and marked as exhibits 1, 2, 3, and 4 respectively. Respondent gave evidence of acts of possession by selling adjoining land to P.W.2 payment of compensation to the family in respect of parts of the land acquired by the Lagos State Government. His evidence was corroborated substantially by that of PW4, Emmanuel Oladipo Bakare, except in two materials respects. Respondent said that the land in dispute was the share of his branch of the family, and that it was given to him and his brother J. A. Bakare now living overseas, PW4 Emmanuel Oladipo Bakare’s evidence was that the land was given to respondent. Again whereas PW4’s evidence was that “the land was allocated to the plaintiff as a result of a distribution by the executors of our late father”, respondent’s evidence was that “after the death of my father his land was shared amongst the children and I am one of the children.” There was no suggestion that this was done by the executors. In fact there is evidence that the land was shared by the family after the death of the two executors of the will of J.S. Bakare, the father of the respondent. Appellant also in his statement of defence and evidence in court and that of his witnesses claims to have derived his title from the Otapo family and relied on a conveyance dated 16th August, 1974 made to him of the land in dispute on behalf of the same Otapo family. This conveyance was tendered and admitted as exhibit 9. Lamidi Afunku DW1 was the star witness for the appellant. Lamidi Afunku denied that J.S. Bakare, respondent’s late father, is one of the names in the register of persons who have purchased land from the Otapo family. Also DW3, Alhaji Ali Isiba, the current head of the Olabua Ohunfa-Otapo family (which is the same as the Otapo family) at the time of the litigation gave evidence of the sale of the land to appellant, and denied that Alimi Otapo, Ogunsanrin and Dada Oya sold any land to respondent’s father. Thus both appellant and respondent claim to derive title from the Otapo family. I reproduce verbatim the relevant paragraphs of appellant’s statement of defence which are as averred in paragraphs 1, 2, 3, 4 and 5.

The defendant does not admit paragraphs 2, 3, 4, 5, 6, 8, 10, 11, 12 and 13 of the statement of claim and puts the plaintiff to the strictest proof thereof.
The defendant is not in a position to deny or admit paragraphs 7 and 9 of the statement of claim and puts the plaintiff to the strictest proof thereof.
The defendant is the freehold owner of the parcel of land claimed by him along Agege Bye-Pass, Agege by virtue of a deed of conveyance dated 16th August, 1974 and registered as No.2 at page 2 of volume 1465 of the Lagos land register.
All land in that area including the portion claimed by the defendant was vested in the Olabua Ohunfa Otapo family as original owners from time immemorial.
The defendant’s predecessors in title remained in effective possession of all their land including defendant’s land exercising maximum acts of ownership thereof farming, leasing and selling portions thereof for several years without let or hindrance.

It is clear from the averments in paragraphs 1 and 2 of the statement of defence that appellant/defendant joined issues with the respondent/plaintiff in the court of trial with respect to paragraphs 3, 4, 5, 6, 7 of the statement of claim. Of particular relevance to the determination of this appeal and the findings of fact of learned trial judge are paragraphs 6 and 7 of the statement of claim in respect of which issues were joined.

Paragraphs 6 and 7 have already been reproduced in this judgment. The burden therefore rests on the respondent not only to show how a land which was devised by will was distributed amongst the children in accordance with native law and custom, but even if he succeeded in doing that how on his evidence the distribution vested title in him alone. It is well settled law that an action for declaration is an important method for ascertaining and determining the legal rights of parties.

Thus where the action is for declaration of title, the presupposition is that the title sought to be ascertained or declared is in the party seeking such a declaration.

In this appeal, respondent sought and was granted a declaration under native law and custom that title of the land in dispute was vested in him by distribution of the estate of his late father J.S. Bakare. The basis of which the parties fought their case in the High Court was as to the title of J.S. Bakare as against that of the appellant.

The question as to the title of the defendant is as to whether respondent proved to the satisfaction of the court that the Otapo family had divested itself of its title at the time of the alleged grant to the appellant. If this has been answered in the affirmative, there was nothing to grant to the appellant. It is clear from this answer that the title of respondent can only be determined after the correct answer to this question. The two grounds of appeal argued have already been reproduced in this judgment.

Chief Williams, SAN., argued the two grounds of appeal together. It was his submission, which I agree with, that the case revolved on the ownership of the land in dispute by J.S. Bakare, father of respondent. Furthermore, for respondent to succeed, he contended that respondent must not only prove ownership in himself, he must show the capacity of his ownership. He referred to the will of J.S. Bakare which was referred to in the judgment of Uthman Mohammed JCA. Counsel referred to the Administration of Estates Law of Lagos State. It was submitted that respondent was claiming the land alone and not in common with the other children.

A person must prove the claim he pleads. In the face of the will, respondent can only claim in English law and native law and custom is excluded. Chief Williams went on to submit on the second limb of his argument that whilst paragraphs 6 and 7 of the statement of claim suggest that either respondent alone or with his brother own the land in dispute, there is nothing to show that the other children agreed with the distribution. Referring to ss. 3, 46 of the Administration of Estates Law, it was submitted that the personal representatives only have the right of possession in respect of land in an estate until the beneficiaries are let into possession. It was finally submitted that all the children of the deceased are entitled under the will, and all the executors can do is to assent to a conveyance to the beneficiaries. Native law and custom is out of the issue.

Mr. Ayanbadejo for the respondent relied on exhibit 7 and submitted that this was sufficient to enable the inference that the land was shared among the beneficiaries. He referred to s. 46(1) of the Administration of Estates Law of Lagos State as enabling beneficiary to take possession of land. It was submitted that respondent has been in possession since 1959, whereas appellant came into possession in 1973. The barest possession is sufficient against a trespasser for an action in trespass. It was submitted that exhibit 7 was only voidable at the instance of other beneficiaries. It was contended that the points now raised were never argued in the Court of Appeal. The issues raised in the dissenting judgment were not considered. Counsel cited United Marketing Co. v. Kara (1963) 1 W.L.R. 523; Okputu Obiode & Ors. v. Orewere (1982) 2 S.C. 170 at p.183 that these points of law cannot be raised in this Court.

In his reply Chief Williams pointed out that these points of law have been raised at every stage of the trial, but had been brushed aside by the court. He also referred to the submission that the beneficiaries can end trust by consent and argued that there was no averment in the pleadings in that regard. He submitted that respondent’s claim was that he and his brother became vested with the land in dispute. Respondent cannot succeed on such pleadings – Nwakuche v. Azubuike 15 WACA 47. It was submitted that the case can be remitted for trial in the court below. Referring to the meeting in exhibit 7, it was submitted that the death of the executors occasioned the meeting.

Chief Williams referred to the reliance by counsel to the respondent on the case of Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 S.C. and submitted that it was no longer good law having been reconsidered by this Court.

In the High Court, the learned trial judge did not only find that title of the land was in J.S. Bakare, the father of the respondent, he went further to make a declaration of title in favour of the respondent. There is no doubt that on the evidence before him the learned trial judge correctly found that J.S. Bakare bought land from Otapo family and was given a conveyance by the family in 1944. He also found that during the lifetime of J.S. Bakare he exercised maximum ownership over the land in dispute, and that Jacob Sanni Bakare died on the 22nd December, 1952 leaving him surviving eight children. Respondent is one of the children. The land in dispute is part of the land purchased from the Otapo family by J.S. Bakare, but there was no evidence to support the averment that the land in dispute was given to respondent and his brother as a result of the distribution of the estate of their father.

The evidence of respondent and that of PW.4 are in conflict on this point. Furthermore, the averment in paragraph 7 of the statement of claim is not supported by any evidence although the appellant joined issues with the respondent. There was no evidence of any arrangement between respondent and his brother whereby the title of their joint ownership, if that is conceded, will vest only in the respondent. It is well established that a party is bound by his pleadings and is not permitted to set up a case different from his pleadings. – See Aderemi v. Adedire (1966) N.M.L.R. 398.

It is also well settled that the evidence must be in line with the pleadings and go to prove the averments in the pleadings. George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR. 71. Where there is variance between the pleadings and the evidence in support, there is no evidence in support of the pleadings which invariably fail – See N.I.P.C. Ltd. v. Thompson Organisation (1969) NMLR. 99.

Where issue is joined on pleadings, the onus of proof is on the party who will fail if no evidence is called. In this appeal issue was joined in the court of trial in respect of title of the respondent, the onus is therefore on him to establish the title. Respondent must lead evidence to show that title of the land in dispute was vested in him. It is not sufficient for the purpose of his claim to prove title in his father or to say that title was vested in him and another, and by an undisclosed arrangement the title should vest in him alone. Even accepting his evidence, the arrangement does not seem to enable a declaration of title in the respondent. In his evidence in chief respondent testified. at p.32, lines 2-5 as follows:

“The land was shared out in three parts. In my own side of the family were myself and John Akindele Bakare. My brother and I agreed to build on our own portion. We surveyed the land, and a building plan after our side (sic).”

There is nothing in this or any other passage tending to show that respondent’s brother surrendered his own share of the land to him. Even if this were the case can that be done on the ipse dixit of respondent without an acceptable documentary evidence? I do not think it can. In the circumstances, it becomes increasingly difficult to see how a declaration of title can be made infavour of the respondent. Respondent having failed to prove any title in himself, the learned trial judge was wrong to have made any declaration to that effect. In Egbunike & anor. v. Muoneweokwu (1962) 1 All N.L.R. (Part 1) p.46, it was held that a party who claims a declaration of title to land to the exclusion of another and who fails to prove such exclusive title cannot succeed in his claim. To grant the claim for a declaration of title as has been done by the trial judge and the Court of Appeal, is to grant a claim which was made and not supported by the pleadings – See Akpapuna v. Obi Nzeka 11 (1983) 7 S.C. 1 at p.24. Chief Williams has challenged the judgment on the ground of the defective title of the respondent. His contention was that since Jacob Sanni Bakare died testate and probate of his will had been granted to the executors, the property devolved on them as trustees of the estate and only the trustees can grant a valid title. He referred to s. 46 of the Administration of Estates Law of Lagos State and relied on its provisions. As cogent as this contention appears to be, it is not a point raised in the pleadings of either of the parties and was not an issue between the parties at the trial. The learned trial judge rightly ignored it. I am also of the view that the dissenting judgment by Uthman Mohammed, JCA in the Court of Appeal was wrong to have relied on it.

With respect to the claim as to trespass, the trial court found respondent to be in possession in 1959. Thus in 1973 when appellant entered, respondent was in possession. It was also found that at that time, the Otapo family had so divested itself of its rights in respect of the area of land in dispute that there was nothing left to grant to appellant – See Lasisi & anor. v. Tubi & anor. (1974) 1 All N.L.R. (Pt. 2) 440 at p.444. It is clear that as between respondent and appellant, the former had a better title and being in possession can bring and maintain action in trespass. It is well settled, and there are numerous decisions of this Court to support the proposition, that where in an action for damages for trespass both parties claim the right to possession by virtue of their respective titles, the trial judge should resolve the issue of their competing titles. In this appeal as in Adeshoye v. Shiwoniku (1952) 14 WAC.A. 86, appellant who was relying for his title on the conveyance from the Otapo family in 1974, who had earlier since 1944 conveyed the entirety of their interest in respect of the area in dispute to respondent’s late father, had no title. Respondent who was in possession when appellant entered, and was relying on the conveyance of 1944 to his father and his possession in 1959, which is a better title can maintain an action in trespass.
I think both the learned trial judge and the Court of Appeal were right to have granted the injunction to the respondent who has proved that he was in possession of the land as against the appellant who has proved no title to the land.

It is now important to decide whether respondent’s claim with respect to declaration of title to the land in dispute should be dismissed because he has failed to prove the title claimed or merely struck out. It is clear from the judgment in this appeal, that appellant having not been shown to have any title cannot be entitled to judgment if the claim of the respondent were to be dismissed. On the other hand, respondent has failed to prove what he averred in his pleading, namely, a declaration of title in himself, in fee simple or in the alternative under native law and custom. This case is different from Edu v. Cole 1960) WNLR. 18, and Alade v. Dina (1943) 17 NLR. 32 where title, on failure of plaintiff to prove title could vest in the defendant. In this case not giving judgment for the appellant, who has not proved any title, or to the respondent, who has proved a valid title in his predecessor, the course of justice in my opinion will be served more by striking out the claim for a declaration of title than by dismissing it – See Craig v. Craig (1967) NMLR. 52.

For the reasons I have given in this judgment, I would allow the appeal in respect of the claim for a declaration of title, and strike out the claim. The appeal against the judgment in respect of trespass and injunction lacks merit, and is hereby dismissed. The judgment of Beckley J. is to this extent affirmed. Appellant shall pay N300 as cost to the respondents.

KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment read in this appeal by my brother, Coker, J.S.C. and I am in entire agreement with the conclusions and orders made therein.

OPUTA, J.S.C.: In the court of first instance – the Ikeja Judicial Division of the Lagos State High Court, the plaintiff now respondent claimed as follows:

Declaration of title in fee simple or under Yoruba native law and custom to the piece or parcel of land lying and being near Ipaja Road, Agege, Ikeja Division of Lagos State.
N100 damages for trespass.
An injunction.

Pleadings were ordered filed and duly delivered. After due hearing, Beckley, J. on the 18th November 1977 gave judgment for the plaintiff for declaration, N50 damages for trespass and ordered an injunction against the defendant – the present appellant. The defendant in the trial court then appealed to the Court of Appeal, Lagos Division. The court below by a majority decision dismissed his appeal. The defendant now appeals to this Court.

I have had the privilege of reading in draft the leading judgment of my learned brother Coker, JSC. I agree with his reasoning and conclusions. But I will like to make a few observations of my own on some of the grounds of appeal vis-a-vis the pleadings filed in this case, and the issues settled on those pleadings. Ground 2 complained that the court below erred in law in granting the plaintiff/respondent’s claims for declaration, damages for trespass and injunction. The particulars thereof were as follows:

(a) “On the evidence put before the court by the plaintiff, it is clear that he has failed to prove that he has received a conveyance or vesting assent from the executors of J.S. Bakare or from the personal representatives of his last surviving executor.

(b) “It follows that the plaintiff has no title or right to exclusive possession over any portion of the real estate of late J.S. Bakare.

Now the main aim of pleadings is to determine and thus narrow the issues to be contested. The second aim is to ensure a fair hearing by preventing surprise and embarrassment to either party. For this reason, it seems reasonable that parties should be bound by their pleadings and that any evidence which is at variance with such pleadings ought to be discounted and disregarded as it goes to no issue. Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113 at p.117.
The question then arises:- Did the plaintiff now respondent plead any will which will then call into question the fact that there ought to be a vesting assent or a conveyance by the executors of the will or in their absence their personal representatives? The answer is No.

From the statement of claim on which this case was contested and fought in the trial court, the plaintiff pleaded and relied on his father’s (Jacob Sanni Bakare’s) title, based on “a deed of conveyance dated the 21st day of September 1944 and registered as No. 50 at p. 50 in volume 657 of the Register of Deeds kept at the Land Registry, Lagos”. His father died on the 22nd December 1952. What then happened? Paragraph 6 of the plaintiff’s statement of claim now becomes relevant. In that paragraph, the plaintiff pleaded:

”The plaintiff further says that after his father’s death, his properties were distributed amongst his children under the native law and custom, that the land in dispute was given to him and his brother, JA Bakare”.

This paragraph does not introduce devolution under a will. It did not mention executors etc. Rather it clearly emphasised that the distribution of his late father’s estate was made under the rules of native law and custom. It was merely pedantic to introduce into a distribution under Yoruba native law and custom the English concept of fee simple even as an alternative claim, (see paragraph 13 of the statement of claim).

What was the answer of the defendant (now appellant in this Court) to the plaintiff’s root of title as pleaded in paragraphs 3 and 6 of his statement of claim? It is this:-

”The defendant does not admit paragraphs …3 … 6 … and 13 of the statement of claim and puts the plaintiff to the strictest proof thereof’.

Strictest proof of what? The natural and logical answer is “strictest proof’ of what he pleaded, that is to say, (i) proof of the conveyance to plaintiff’s father J.S. Bakare, (ii) proof of the distribution of J.S. Bakare’s properties on death amongst his children (not according to any other law) but “under the native law and custom” and (iii) finally proof that ”the land in dispute was given to the plaintiff and his brother, JA Bakare.” These were the radical and essential issues in this case. It was primarily and essentially a contest between J.S. Bakare’s deed of conveyance of 21st September 1944 (through and under which the plaintiff/respondent claims) and the deed of 16th August, 1974 (through and under which the defendant/appellant claims). No where in the statement of claim or in the statement of defence was there any mention made of a will or executors or vesting assent. These were non-issues.

It was the duty of the plaintiff to confine his evidence to those issues raised by the pleadings. If he strayed and led evidence on a point which was a non-issue, that point does not then become an issue, unless there was an amendment to the pleadings. It was open to the defendant to amend his statement of defence and plead that on the death of J.S. Bakare, his estate including the land in dispute vested in his executors and that the absence of any vesting deed or conveyance from those executors or their personal representatives to the plaintiff rendered the plaintiff’s claim unenforceable. This, the present appellant did not do. The case was therefore considered on the pleadings and the issues raised therein. Also the trial court has a duty to reject evidence which is contrary to the pleadings: National Investment Properties Co. Ltd. v. Thompson Organisation Ltd. & Anor. (1969) N.A.L.R. 99 at p.104.

This duty exists even where and if counsel did not object to the admissibility of such evidence. But if such inadmissible evidence, through an oversight, or for any other reason, was admitted, it was still the duty of the trial court when it came to consider its judgment to treat that inadmissible evidence (here evidence of facts not pleaded and therefore not in issue) as if it had never been admitted. Such evidence “of distribution by the executors of our late father” as was given by P.W.4 or exhibits 1 and 2 tendered by the plaintiff were wrongly admitted and the trial court was right in disregarding them as irrelevant to the issues properly raised on the pleadings:- Ogboda v. Adulugba SC. 31/70 delivered on 12th February 1971. No party should be allowed to make a case at the trial either at variance with or different from him pleadings:- Metalimpex v. A.G. Leventis & Co. (Nig.) Ltd. (1976) 2 S.C. 91 at 102.

In ground 1, one of the complaints was that “there is no satisfactory evidence that the distribution of the real estate of Jacob Sanni Bakare was carried out with the consent of all his children”. On this complaint, my comment will be that the use of the expression “satisfactory” above does suggest that there was some evidence.

Whether that evidence was satisfactory or not, will necessarily come under evaluation of evidence. This is the function of the trial court. And in cases like the one on appeal, where issues of credibility will naturally arise, an appellate court will be very loathe to interfere. And this court does not normally interfere with concurrent findings of fact of the trial court and the Court of Appeal.
Secondly whether the distribution of the real estate of Jacob Sanni Bakare was carried out with the consent of all his children was not an issue arising from the pleading. One wonders whether it could even arise in this case. The live issue in this case is – as between the plaintiff and the defendant who has a better title? The judgment of Beckley, J. (in this case) is a judgment in personam binding only on the plaintiff/respondent and the defendant/appellant and their privies and no more. Any member of the Bakare family who is dissatisfied with the distribution was at liberty to join as a defendant and is at liberty to bring a fresh action against the plaintiff/respondent. If none joined, that raises a presumption that they were satisfied. Also the sharing of the real estate of J.S. Bakare is a domestic arrangement of the Bakare family which should not give any headache to the appellant.

The more substantial complaint is that:

“the evidence of the plaintiff that he was permitted by his brother, J.A. Bakare, to use the land in dispute for his own purposes was not pleaded and went to no issue and ought to have been ignored by the courts below.”

This court has stressed in a number of cases that evidence in respect of matters not pleaded really goes to no issues and should be disregarded as irrelevant in considering the judgment. But is the above complaint correct? I doubt it. In paragraph 7 of his statement of claim, the plaintiff/respondent very clearly averred:

“7. the plaintiff says that by an arrangement between him and his brother, he was permitted to use the land for his own purpose and accordingly he submitted and got an approved building plan in respect of the land in dispute”.

Paragraph 7 above completely neutralises and silences the appellant’s complaint. The plaintiff/respondent’s evidence on this point was in line with his pleading.

“After the death of my father the land was shared amongst his children and I am one of the children. The land was shared out into three parts. In my own side of the family were myself and John Akindele Bakare. My brother and I agreed to building on our own portion. We surveyed the land and a building plan was afterwards made”.

The issue that could have arisen is – whether on the above pleading and evidence, there could have been a declaration of title in favour of the plaintiff/respondent alone or jointly with his brother?

In his brief, Chief Williams, SAN., argued that “the evidence in support of the plaintiff’s case weakened or practically destroyed the title pleaded by him. The plaintiff tendered in evidence the last will and testament of J.S. Bakare and the probate thereof which were admitted in evidence as exhibit 1 (probate) and exhibit 2 (will) ….. ”The appellant submits that the defendant is entitled to make use of the contents of exhibits 1, 2 and 7″. Following the above, Chief Williams, SAN, then posed the question “Has the plaintiff established the title pleaded by him?” In court, the main argument of the appellant in answer to the question posed above centred around the existence of a will, exhibit 2 and whether the plaintiff in view of exhibit 2 can now claim under native law and custom or under the Administration of Estates Law? I have already commented on this aspect of the case. I will only add that the arguments regarding probate, will, executors, personal representatives and reference to the Administration of Estates Law were academically very erudite but they went to no issue as the will, exhibit 2 was not pleaded by either party. The question whether there could be a declaration in favour of the plaintiff alone or jointly with his brother JA Bakare was not agitated before us so I will let sleeping dogs lie peacefully now.
It is for the above reasons and for the more exhaustive reasons given in the leading judgment of my learned brother Coker, J.S.C., that I, too, will dismiss this appeal with N300 costs to the respondent. The judgment of the trial court and the majority judgment of the court below are both upheld and affirmed.
Appeal disallowed.

3PLR – ALHAJI SANNI SHAIBU V. J.O. BAKARE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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