3PLR – MUSILIU I. BASHUA  V DR. OLADIPO MAJA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MUSILIU I. BASHUA 

V

DR. OLADIPO MAJA

SUPREME COURT OF NIGERIA

SUIT NO. SC 209/1974

26TH NOVEMBER, 1976.

3PLR/1976/34 (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

UDOMA, J.S.C.

BELLO, J.S.C.

IDIGBE, J.S.C.

 

REPRESENTATION

Mr. E. A. Molajo – for Appellant

Mr. S.O.O. Abudu – for Respondent

 

MAIN ISSUES

Land Law – Declaration of title – Damages for trespass to land – Injunction against defendant – Recovery of possession of land – Appellant in possession of land – Root of title traced to different families – Whether judgment against weight of evidence.

 

MAIN JUDGEMENT

UDOMA, J.S.C. (Delivering the Judgment of the Court):

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

(1)  Declaration of title to the piece or parcel of land situate at Bashua Street, Shomolu, Lagos State, Nigeria.

(2) Order of injunction restraining the defendant from committing trespass to the said land.

(3) Damages for trespass in the sum of £100.

(4) Possession of the said piece or parcel of land.”

Pleading having been ordered, were duly filed and delivered.

In view of the submissions made to us by counsel in the appeal, and the nature of the controversy between the respondent and the appellant and the manner in which pleadings appear to have been settled, we think it expedient for the proper appreciation of the issues involved in the appeal, to set out in extenso hereunder the pleadings of the parties in the suit.

In support of his claims, the respondent pleaded as follows:

“(1)   The Plaintiff is a Medical Practitioner.

(2)     The Alashe Family of Ojuwoye became owners from time immemorial under native law and custom of a large area of land (hereinafter called “the land”) whereof the land in dispute forms a portion.

(3)     The land in dispute (hereinafter called ‘the land in dispute”) is described on a survey plan and therein edged RED attached to a deed of conveyance dated 7th day of December 1971 made between Sanusi A. Bashua, J.A. Eshubi, N. A. Kekere-Ekun, Abu Amore, M. Adisa Bashua and R. A. Adewale as vendors of the one part and Musiliu I. Bashua, to wit, the defendant, as purchaser of the other part and registered as No. 70 at page 70 in Volume 1325 of the Land Registry Lagos.

(4)     The said Vendors who are members of Bashua Chieftaincy Family executed the deed of conveyance aforesaid for themselves and on behalf of the Bashua Chieftaincy Family of Lagos.

(5)     The Alashe Family of Ojuwoye referred to in paragraph 2 above in Suit No. LD/1950/1957 to the knowledge of Bashua Chieftaincy Family litigated over the land or a large area thereof.

(6)     The said Bashua Chieftaincy Family acquiesced in the role played by Alashe Family in the Suit No.LD/1950/1957 and stood by with full knowledge of the proceedings in the said suit.

(7)     The plaintiff acquired his right and title to areas of the land by virtue of deed of conveyance dated the 13th April, 1970 registered as No. 72 at page 72 in Volume 1317 and another deed of conveyance dated the 17th January 1972 registered as No. 90 at page 90 in Volume 1377 both of the Lands Registry, Lagos.

(8)     In several Court actions, one Aina Edu represented the Alashe Family in matters pertaining to the land.

(9)     The Alashe Family is also known as Ifadu Alashe Family.

(10)   The plaintiff will rely on the following suits which pertain to the rights and interests of the Alashe Family in the land –

(a)     Supreme Court of Nigeria, Lagos Judicial Division ……….. Suit No. 372/28

(b) -do- …………… 165/29

(c) -do- …………… 67/1946

(d) -do- …………… 272/51

(e)     High Court of Lagos        “        LD/150/57

(f)      Supreme Court Appeal     “ “SC/60/71

(11)   The plaintiff’s predecessors in title were in possession of the land in dispute exercising full right of ownership thereon.

(12)   The plaintiff after purchasing the land in dispute as herein before averred immediately went into possession thereof and exercised acts of ownership thereon by himself and through his servants and agents.

(13)   The Defendant without lawful authority has entered upon the land and committed trespass thereto by digging foundation thereon for the erection of a building or buildings.

(14)   The Defendant will continue to commit acts of trespass to the land unless he is restrained by an order of injunction made against him by this Honourable Court.

(15)   The Bashua Chieftaincy Family is estopped from denying the title of the Alashe Family to the land of the said Alashe Family aforesaid by virtue of several decisions of the Supreme Court of Nigeria, Lagos Judicial Division, the High Court of Lagos and the Supreme Court of Nigeria respectively aforesaid.

(16)   The land of Alashe Family is included in the area of land appearing on the plan known as sheet No. 342/912 published by the Director of Federal Surveys, Lagos relating to land at Mushin-Ikeja-Agege Districts of the Lagos State.”

The averments of the appellant in answer to the allegations in the Statement of Claim contained were in the following terms:

“Statement of Defence

SAVE AND EXCEPT as is hereinafter expressly admitted, the defendant denies every allegation of fact contained in the plaintiff’s statement of claim as if each were set down and specifically denied.

  1. The defendant admits paragraphs 1, 3, 4 and denies paragraph 2, 5, 6, 7, 8, 9 to 16 of the plaintiff’s statement of claim and puts him to the strict prove of the various allegations contained therein.
  2. The defendant states that the land the subject matter of this action belongs under native law and custom to the Bashua Chieftaincy Family from time immemorial and forms part of a larger area of land belonging to the Family.
  3. The said Bashua Chieftaincy have from time immemorial been in continuous and uninterrupted possession of the said land exercising all maximum rights of ownership over the whole land to the knowledge of the plaintiff.
  4. Sometimes in 1913, the Governor by Notice dated 29/10/1913 acquired a large area of land including the land in dispute, and by a letter dated November 27th, 1931, Oduka claimed compensation for the Bashua Family. The defendant will rely on the letters and all documents in connection with the said Notice of acquisition.
  5. The Bashua Chieftaincy Family have various litigations over their land and will rely on the judgment in suit Nos. 74/26, HK/63/61, SC376/63, SC/583/65, FSC/276/63 at the trial.
  6. In Suit No. IK/227/65, the Bashua Chieftaincy Family successfully brought an action against Alhaji A.W. Elias for trespass, damages and injunction, over a large area of land including the land the subject matter of this action.

The defendant will rely on the said judgment and the deed of conveyance dated 2nd day of May, 1958 relied upon by the defendant in that suit.

  1. The Bashua Chieftaincy Family have been exercising upon acts of owner-ship in possession for a long period of time over large area of land including the land in dispute to the knowledge of the plaintiff predecessor in title and the defendant will reply on the long possession by the defendant’s predecessors in title to the land in dispute.
  2. By a deed of conveyance dated 7/12/71 and registered as No. 70 at page 70 Volume 1325, the Bashua Chieftaincy Family sold the piece of land in dispute to the defendant.
  3. The defendant went into immediate possession and have since erected a building worth over £8,000 on the land.
  4. The defendant will rely on all equitable defences including laches, long pos-session, acquiescence, stale claim and will contend that the plaintiff’s claim is speculative and should be dismissed.”

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

The manner in which the pleadings were settled by both parties calls for brief comment although we were not addressed by counsel on that issue. We hasten, however, to assure both counsel that our decision in this appeal will in no way be influenced by any apparent defects in the pleadings.

In para. 10 of the statement of claim, the respondent merely averred that he would rely on certain numbered judgments which “pertain to the rights and interests of the Alashe Family in the land”. The nature and form such reliance would take whether by way of estoppel in pais or per rem judicatam or as acts of pos-session was not disclosed, nor were the names given of the parties directly involved in the suits resulting in the various judgments sought to be relied upon. By reason of such insufficiency of particulars, it was clearly impossible on the face of the pleadings to identify with precision the parties directly affected by the said judgments.

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

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

But the worse offender in this respect as t pleadings would appear to be the appellant. In para. 4 of his statement of defence, the appellant averred that the land a claim to the title whereof he was resisting and which he alleged had been bought by, and lawfully conveyed to him by the Bashua Chieftaincy Family was in fact, in 1913, the subject of compulsory acquisition by Government Family for which Bashua Chieftaincy Family, his vendors, had claimed compensation. Surely an averment of that sort was sufficient to throw the appellant out of court, since he was not resisting the claim of the respondent as a Government tenant, which if he did, might possibly have raised the issue of jus tertii in respect of the claim for dam-ages for trespass; nor was there any averment that the acquisition was later abandoned; or that the land in question was subsequently surrendered to Bashua Chieftaincy Family.

In spite of the unsatisfactory state of the pleadings having regard to these several defects and neither party raising any objections, the learned trial Judge proceeded with the due hearing and determination of the case on the merits. And it was only during cross-examination that it was virtually dragged out of the first witness for the appellant that in fact the attempted compulsory acquisition by Government in 1913, was later abandoned by the withdrawal of the Notice there-of.

The learned trial Judge in the end accepted the evidence of the respondent and his witnesses and thereupon entered judgment for him, granted him a declaration of the land in dispute, awarded him damages for trespass and granted him injunction and an order for possession against the appellant. Hence this appeal.

On the evidence before the learned trial Judge, the case of the respondent in support of his claims put in proper form and correct historical sequence and perspective, was that the land the subject-matter of the action and in dispute between him and the appellant was, prior to his acquisition of it for valuable consideration, a small portion of a vast area of land the absolute property of the Alashe Family of Ojuwoye; that the whole land, property of the Alashe Family, is situate at Igbo-bi and is known as Bajulaiye Village and Ijesha Village; that when Odun Ogun, the ancestor or predecessor in title of the Alashe Family of Ojuwoye was alive, originally the land of Alashe Family of Ojuwoye was even much larger than the present area; and in extent used to cover the whole area known as Bajulaiye Village; Ijesha Village; and Oja (awja) Village; that after Odun Ogun had been dead for several generations and Ifadu Alashe Family eventually succeeded to the property, in about 1890, permission in accordance with native law and Custom was granted by Ifadu Alashe Family to Eletu Odibo Chieftaincy Family and Bajulaiye Chieftaincy Family to occupy and make use of the whole land as tenants – the land then involved being the vast area covered by Bajulaiye Village; Ijesha Village; and Oja Village upon payment of the then usual customary rent.

It was the case of the respondent that in consequence of the said grant, there developed subsequently differences between Ifadu Alashe Family and the Eletu Odibo Chieftaincy Family, which gave rise to a number of Court cases and culminated in the High Court of Lagos Suit No. LD/150/57 -Aina Edu for herself and on behalf of the members of the Ifadu Alashe Family versus Amuse Gbadesere, Chief Eletu Odibo Chieftaincy Family-which, to the knowledge of the Bashua Chieftaincy Family, resulted in a peaceful settlement on 2nd April, 1958, the terms whereof together with the plan of the land then in dispute as was partitioned between the two Families being on 17th July, 1961 by consent made a judgment of the Court by Alexander Bellamy Ag. C.J.

In support of this aspect of the respondent’s case, in addition to oral testimony, there were tendered the judgment of the court in that case together with the terms of settlement and the plan of the area then in dispute which was partitioned between Ifadu Alashe Family and the Eletu Odibo Chieftaincy Family, both which were marked, Exhibits ‘H’ and ‘H1’; a printed copy of the original Government map of the area known as Mushin-Ikeja-Agege Districts, first Edition, entitled sheet 342/912, drawn and reproduced by the Federal Surveys Department and published by the Director of Surveys, Lagos in 1956, marked, Exhibit ‘C’ – the map bearing the imprint “Crown copyright Reserved”; and the judgment in Suit No. 67/1946 – Aina Edu (Head of Alashe Family) versus Abudulai Bamgbopa ( the Chief Eletu Odibo) and 3 others in the Lagos Judicial Division of the Old Supreme Court of’Nigeria, wherein judgment for a declaration of title to “all that piece or parcel of farm lands situate at Igbobi district” was given in favour of the Alashe Family as against the Chief Eletu Odibo, the judgment in the case being marked, Exhibit ‘F; and the plan in Suit No. 272/51 – Aina Edu versus Amuse Gbadesere – which was marked Exhibit ‘G’.

A similar copy to Exhibit ‘C’ was also produced and tendered by the appellant and marked Exhibit ‘L’, the area of the land in dispute in Suit No. LD/150/57 and in Suit No. 67/1946 being thereon clearly delineated and verged green. The land in dispute in Suit No. IK/155/67, N.A. Kekere-Ekun, Abu Amore and Dr. F.A. Beshua for themselves and on behalf of the Bashua Chieftaincy Family versus Safuratu lyabo Balogun, Dr. Oladipo Maia, Chief Anidu Kasumu and S.A. Bashua was also thereon delineated and verged red. We shall have occasion to advert to this aspect of the case later when considering the whole of the evidence in the light of the submissions of learned counsel.

The respondent also testified that in or about 1966, he purchased the land in dispute for valuable consideration from one Safuratu lyabo Balogun, who had her-self bought the same from, and had it conveyed to her by the Alashe Family of Ojuwoye, Mushin, but that before the conveyance to him could be executed, N. A. Kekere-Ekun; Abu Amore; Dr. F. A. Bashua and S. A. Bashua for themselves and on behalf of the Bashua Chieftaincy Family instituted Suit No. IK/155/67, in the High Court of Lagos, Ikeja Judicial Division, against him and Safuratu lyabo Balogun and 2 Others, claiming, inter alia, a declaration of title to the land in dispute and damages for trespass; and lost, the court holding that the land in dispute was not the property of the Bashua Chieftaincy Family but of Alashe Family of Ojuwoye, Mushin.

The land then in dispute in that case was shown verged red in Exhibits ‘C’ and ‘L’, being superimposition of plan No. JJ.472/66 which was prepared by J.J. Ma-deiros in 1926. The judgment in the case having been delivered in December, 1969, whereby as stated, Bashua Chieftaincy Family lost the claim to the title there-of, he was able to obtain a duly executed conveyance of the land in question on 13th April, 1970 from Safuratu lyabo Balogun, which conveyance was registered at Lagos as No. 72 at page 72 in Volume 1317, Exhibit ‘A’. He immediately there-upon took possession of the land in dispute.

Thereafter the respondent said he also secured for valuable consideration a deed of conveyance of the land in dispute, Exhibit ‘B’ dated 17th January, -1972 and registered at Lagos as: No. 90 at page 90 in Volume 1377, from Alashe Family of Ojuwoye, Mushin, Lagos. According to the respondent his total land holding in the area is shown verged yellow on the plan, Exhibit ‘C’, being a superimposition thereon of the plan No. GF/202 attached to the conveyance, Exhibit ‘B’.

It was the case of the respondent that it was only in December, 1971 that the appellant without his leave or licence broke and entered into the land in dispute and therein dug foundations with a view, to erecting and thereafter erected a building thereon in defiance of the respondent’s title and interest and in disturbance of his possession thereof.

It was the respondent’s case that it was the digging of the foundation for building on the spot verged blue in Exhibit ‘C’, and the appellant’s refusal to leave and to stop his building construction thereon when requested to do so, coupled with the appellant’s assertion that the land in dispute is and has always been from time immemorial the absolute property of the Bashua Chieftaincy Family and his obtaining a conveyance, Exhibit ‘K’ of the land in question from the Bashua Chieftaincy Family, which had provoked him to institute the proceedings which have resulted in the appeal under consideration.

On the other hand, the appellant naturally resisted the respondent’s claim and, in his testimony in support of his own pleadings, said that the land in dispute has been from time Immemorial the property of the Bashua Chieftaincy Family of which he himself is a member; that the portion occupied by him was sold and conveyed to him by a deed of conveyance, Exhibit ‘K’, dated 7th December, 1971 and registered at Lagos as No. 70 at page 70 in Volume 1325 by the Bashua Chieftaincy Family, that he entered and took possession of the land thereafter and thereon erected a building; that the Lagos High Court Suit No. IK/227/65 -Anidu Kasumu for himself and on behalf of the entire members of the Bashua Chieftaincy Family versus Alhall Waheed Elias – was about a vast area of land which included the land in dispute. It was the appellant’s case that the land involved in that case was in Bashua Village and that the action was won by the Bashua Chieftaincy Family which, according to him entitled him to remain in possession of and to make use of the land in dispute.

In the course of their evidence, the appellant and his witnesses made certain important admissions in favour of the respondent which will be dealt with presently. In support of his case the appellant, as already stated, tendered inter alia, a copy of the Government map of Mushin-Ikeja-Agege Districts. It was marked Exhibit ‘L’. Thereon was delineated and verged green the area of land in dispute between Aina Edu (Head of Alashe Family) and Chief Eletu Odibo as well as the boundary of the land said to belong to Safuratu lyabo Balogun and alleged to have been in dispute in Suit No. IK/155/67, which the Bashua Chieftaincy Family had lost, the latter area being verged blue thereon. The judgment of the court in Suit No. IK/155/67 was later confirmed on appeal.

Curiously enough the land in dispute in Suit No. IK/227/65 was nowhere shown on the plan, Exhibit ’L’, although the case was won by the Bashua Chieftaincy Family against Alhaji Waheed Elias, and, judging by the statement of defence, was one of the main planks of the case of the appellant.

Such was the nature of the evidence in the case, before the learned trial judge. At the hearing of the appeal in hand, it was naturally the evidence of the respondent and his witnesses which had to be thoroughly and critically examined by learned counsel for the appellant since, as a rule of law, a plaintiff seeking a declaration of title to land must of necessity succeed on the strength of his own case.

In his submissions, Mr. Molajo, learned counsel for the appellant rightly, as he was entitled to do, attacked the evidence which was accepted by the learned trial Judge and the inferences drawn therefrom by him in reaching his decision. This was quite effectively done on the general ground that the judgment was against the weight of evidence. Indeed, that was the main ground argued before us in this appeal, all other grounds being treated as ordinary but important particulars of the main ground.

Learned counsel contended that the learned trial judge misdirected himself on the evidence generally and therefore came to a wrong decision when he held that the Alashe Family were the original owners of the land in dispute even though the Alashe Family had failed to produce convincing evidence of acts of ownership. He submitted that it was rather the Bashua Chieftaincy Family of which the appellant is a prominent member, who were able to give convincing evidence of their ownership and possession of the said land stretching over a long period of time, including evidence of successful litigation over a number of years, which should have been accepted by the learned trial Judge as warranting the inference that the land in dispute was the exclusive property of the Bashua Chieftaincy Family.

We do not think that this criticism of the judgment of the learned trial Judge is sound. It seems to us that there were three issues which had to be carefully examined by the learned trial Judge on the evidence as a whole and having regard to the way and manner the case was presented by both parties. There was the question of the identity of the land in dispute and the location of it in relation to the area of land affected by the various judgments tendered and admitted in evidence by the court and upon which both the respondent and the appellant relied as enhancing and establishing their cause. Then there was the traditional evidence since both parties rooted their title to the land in dispute in two different and opposing families. It was necessary properly and accurately to evaluate such evidence of tradition as was tendered to the court. Finally evidence of acts of possession had to be examined in relation to the traditional evidence. The question was: between the respondent and the appellant who entered into possession before the other and by what right was such entry exercised?

On the issue of identity and location of the land in dispute, which was all important in a case of this kind, the learned trial Judge considered the areas in dispute in Suit No. IK/227/65 – Anidu Kasumu for himself and on behalf of the entire members of Bashua Chieftaincy Family versus Alhaii Waheed Elias – Exhibit ‘N’, the plan thereof being Exhibit ‘N1’ which was relied upon by the appellant as including the land In dispute in the case on appeal. In this connection, the learned trial Judge said:

“Although judgment was given in favour of the Bashua Chieftaincy Family, that judgment is not relevant to this case. It shows that as between the Bashuas and Elias, the Bashua Chieftaincy Family had a better title. The defendant tried to show that the land in dispute in the present case falls within the area verged green in Exhibit ’Nl’ but the surveyor was unable to establish the position of the land in dispute in Exhibit ’Nl’. Undoubtedly, it is in Exhibit ’S’ but Exhibit ’S’ is not a map of the land claimed by Bashua Chieftaincy Family.”

It is impossible to fault the findings of the learned trial Judge on this aspect of the appellant’s case.

As already remarked upon by us, the remarkable thing about this aspect of the appellant’s case was that while he took the trouble to indicate in the map, Exhibit ‘L’, produced by him the areas of land in dispute in Suit No. IK/155/67 – N.A. Kekere-Ekun; Abu Amore; Dr. F. A. Bashua for themselves and on behalf of the Bashua Chieftaincy Family versus Safuratu Iyabo Balogun; Dr. Oladipo Maja and 2 Others such areas being therein verged red; and in Suit No. 67/1946 Exhibit ‘F’ -Aina Edu (Head of Alashe Family) versus Abudulai Samgbopa (the Chief Eletu Odibo); Bello Sari, Kafaru Dorojaiye and Abudu Eletu – the area thereof being verged green; he failed to have the area which was in dispute in Suit No. IK/227/65, Exhibits ‘N’ and ‘N1’ delineated on Exhibit ‘L’. That, it should be remembered, is the copy of a Government map covering the whole of Mushin-Ikeja-Agege Districts. such failure cannot be dismissed as insignificant. It was partly by reason of such failure that the learned trial Judge rightly held that the judgment in Suit No. IK/227/65, Exhibit ’N’ was irrelevant. In other words, that it had not been proven to his satisfaction that the land in dispute in the case on appeal is part of or falls within the vast area of land which was claimed by the Bashua Chieftaincy Family against Alhaji Waheed Elias. It is also not without significance as was submitted by Mr. Abudu, learned counsel for the respondent, that not a single question was put to either the respondent or to Chief William Ladega, the Head of the Alashe Family about the land that was in dispute in Suit No. IK/227/65 when they testified as witnesses at the trial.

In determining the location of the land in dispute, the learned trial Judge found as we ourselves have found, the two maps, Exhibit ‘C’, produced by the appellant extremely helpful; and turning to the evidence of the respondent on whom the learned trial Judge, rightly, in our view, placed the onus of proof, he considered a number of previous judgments affecting the area, produced by the respondent.

One such judgment was the one in Suit No. LD/150/57, Exhibits ‘H’ and ‘Ht’ -Aina Edu for herself and on behalf of the lladu Alashe family versus Amusa Gbadesere, Chief Eletu Odibo for himself and on behalf of the members of the Eletu Odibo Chieftaincy Farhily. Together with that judgment there were terms of settlement reached between the parties therein. The area in dispute in Exhibits ‘H’ and ‘H1’ was the same area that was in dispute between the same parties in Suit No. 67/1946, Exhibits ‘F’ and ‘F1’ Judgments wherein was given, as observed by the learned trial Judge, by Stephen Bankole Rhodes, P. J. in 1950 and which also referred to a previous judgment of Webber, Ag. CJ. in 1929. The land involved in the dispute in Suit No. LD/150/67 was described as situate at Igbobi and commonly known as Bajulaiye Village, Ijesha Village and Oja (Awja) Village which originally belonged to Odun Ogun, the predecessor in title of Ifadu Alashe Family of Ojuwoye and was delineated and verged green in Exhibits ‘C’ and ‘L’.

In terms of the terms of settlement dated 2nd April, 1958, the land was partitioned between Ifadu Alashe Family who took the whole of Bajulaiye Village and two-thirds of Ijesha Village, which area was verged pink in the plan attached to the judgment; and Eletu Odibo Chieftaincy family whose portion consisted of the whole of Oja Village and one-third of Ijesha Village, which area was verged yellow in the said plan. The terms of settlement became the judgment of the court dated 17th July, 1961. Thus the judgments in Suits No. LD/150/67 and No. IK/155/67 fixed the location of the land, property of the Ifadu Alashe Family within which lies the land in dispute in the case on appeal.

The land of Ifadu Alashe Family has been described as situate at Igbobi area and comprises Bajulaiye and Ijesha Villages. Furthermore, in his judgment in Suit No. IK1155/67 Kazeem J. had found as follows:

“On the contrary, the first defendant (i.e. Safuratu lyabo Balogun) was able to establish through series of judgments and proceedings (Exhibits ‘J’, ‘K’, ‘K1’, ‘L’, ‘N’ and ‘X’) that the Alashe Chieftaincy Family and the Eletu Odibo Chieftaincy Family have litigated since 1946 on a large parcel of land which included the land in dispute. I was particularly impressed by the evidence of Mr. William Gascoyne (3rd witness for 1st Defendant) who satisfactorily established that the land in dispute formed part of the area of land on which both the Alashe Family and the Eletu Odibo Family have litigated upon for many years past. When that evidence is considered along with the evidence of Chief William Ladega, the Alashe of Oju-Iwoye as well as that of Oseni Popoola, the Bale of Bajulaiye, I am satisfied that as between the Bashua Chieftaincy Family and the Alashe Chieftaincy Family, it has been established that the land in dispute be-longed to the Alashe Chieftaincy Family.”

These findings are again re-echoed by George J. in his judgment now under review. He also commented on the favourable impression he formed of the evidence of William Gascoyne and Chief William Ladega and with whose evidence he contrasted the evidence of the appellant and his witnesses when he said:

“I am not impressed by the prevarications of Chief Bashua who stumbled over his words when trying to give the traditional history of the land. He did not even know the title of his ancestor. I prefer the evidence of William Ladega the Alashe of Oju-Iwoye.”

The evidence accepted by the learned trial Judge so far was concerned mainly with the root of title of the respondent in the light of traditional history. It was also manifest evidence of the exercise of acts of ownership over a considerable length of time, positive and numerous enough to warrant the inference that the Alashe Family were the exclusive owners of the land in dispute, thus establishing the respondent’s root of title.

One important effect of the judgment In Suit No. IK/ 155/67 wherein the respondent was a defendant in an action instituted against him and others by the Bashua Chieftaincy Family is that the Bashua Chieftaincy Family and all those claiming through the said family would be precluded from re-opening or re-litigating the is-sues which had been determined by that judgment. That would naturally apply to and protect the property conveyed to the respondent by Safuratu lyabo Balogun covered by the conveyance, Exhibit ‘A’, dated 13th April, 1970 as against the Bashua Chieftaincy Family.

Thus the traditional evidence in support of the respondent’s claim was accepted and the location of the land in dispute covered by the two conveyances, Exhibits ‘A’ and ‘B’ claimed by the respondent was established beyond question, as with-in the area of land the ownership of which has for several generations been vested in the Alashe Family, the land in dispute being situate and lying at Bajulaiye Village, Shomolu. It is verged pink on the plan No. GF/202 prepared by licensed surveyor G. F. Okunsanya and dated 14th January, 1942, attached to the conveyance, Exhibit ‘B’, which was superimposed on the Government Sheet No. 342/912, Exhibits ‘C’ and ‘L’ and thereon verged yellow. There then remains the question of the entry into and the exercise of acts of ownership and possession in and over the land in dispute.

The case of the respondent was that he first bought the land in dispute and paid a deposit towards the purchase price in 1966, when the only building in the vicinity was on a plot opposite the land in dispute. But before he could obtain a conveyance he and his vendor, Safuratu lyabo Balogun were sued to court by the Bashua Chieftaincy Family in Suit No. IK/155/67, Exhibit’E’. The Bashua Chieftaincy Family lost their claim for a declaration of title, damages for trespass and an injunction. The judgment of the High Court was confirmed on appeal. Thereafter by a deed of conveyance, dated 13th January, 1970, Exhibit ‘A’ the land was conveyed to him by Safuratu lyabo Balogun. Then again by a conveyance, dated 17th January, 1972, Exhibit ‘B’, the Alashe Family sold and conveyed the land in dispute to him for a valuable consideration. And as the appellant still remained in possession of a portion of the land in dispute, he therefore instituted against him the suit which has resulted in the instant appeal. The appellant had resisted the claim of the respondent on the ground that the land in dispute was the property of the Bashua Chieftaincy Family.

It seems clear to us that the claim of the Bashua Chieftaincy Family to the land in dispute having been dismissed in Suit No. IK/155/67 wherein the respondent was one of the defendants, the Bashua Chieftaincy Family and any one claiming through them are caught by the decision in that case. They are precluded from re- litigating the issues again. It is a matter of public policy that there must be an end to litigation over the same subject- matter between the same parties. Indeed, that was virtually the conclusion reached by the learned trial Judge when he said:

“Since this piece of land falls within the land of Safuratu Balogun the defend-ant is in any case (apart from his counsel’s admission) estopped from denying the plaintiff’s title.”

In addition to such finding as we had previously indicated, we set out hereunder certain admissions which were made in the course of the proceedings in favour of the respondent. In his evidence under cross-examination G. F. Okunsanya, 4th witness for the appellant said:

“1 agree land on which I built falls with the area verged green in ’Exhibit C in respect of which Dr. Maja the plaintiff obtained judgment. I acquired this piece of land in 1966 from Alhaji Elias. My lawyer Oshipitan investigated the title. He did not tell me that Alhaji Elias bought the land Alashe Family. After I bought the land then I know that the Bashua Family were the owners. I bought the land again from the Bashua Family in 1969. I bought the land again from the plain-tiff in 1972. The portion of the area verged blue in Exhibit C falls within the area verged green in Exhibit S. I see Exhibit L. The area verged green in Exhibit S is the same as the area verged Red in Exhibit L.”

Then Sanusi Alabi Bashua, Chief Bashua, Head of the Bashua Chieftaincy Family, 8th witness for the appellant under cross-examination said:

‘The plaintiff has obtained judgment against us in respect of some of our family land. I know the land in dispute. My evidence is concerned with that land.”

And Musiliu lyanda Bashua, the appellant, under cross- examination said:

“At the time I bought the land my father had told me that N. A. Kekere-Ekun and others had sued the Plaintiff and Safuratu in respect of Family land. I know the action was commenced in 1967. I know that Kazeem J. gave judgment in 1969. It is Exhibit E. ……………………………… I know the land in dispute overlaps the land in respect of which the Plaintiff obtained judgment. I am a draftsman. I did not know at the time Dr. Maja sued us. I asked my surveyor to go and plot the land. It was then I know it overlaps on the Plaintiff’s land.        I know that the yellow portion on Exhibit L does not belong to Bashua Family. I know that it belongs to the Plaintiff.”

These admissions serve to show that the appellant as well as the Bashua Chieftaincy Family know all along that the land in dispute was the lawful property of the respondent which the latter acquired from both Safuratu lyabo Balogun and the Ifadu Alashe Family. Therefore the contention of the learned counsel for the appellant that the respondent did not successfully establish his title to the land is un-tenable.

In all the circumstances, it is obvious that the complaint of the appellant against the judgment of the learned trial Judge is ill-conceived. It is altogether unjustified. We are satisfied and hold that on the whole there was preponderance of evidence in favour of the respondent, and this court can find no reason whatsoever to disturb the conclusions arrived at by the learned trial Judge on pure issues of facts properly determined by him. That should normally have been the end of the appeal, but on a study of the proceedings and judgment and order made by the learned trial Judge, we notice that the last paragraph of his judgment reads:

“Judgment is therefore entered for the plaintiff as follows –

(1) Declaration of title to the piece or parcel of land claimed by him in his writ. (2) N20 damages for trespass to that portion of the land in dispute verged yellow in Exhibit ‘C’.

(3) An order of injunction restraining the defendant from entering or otherwise dealing with the whole of the land in dispute.

(4) Possession of the remaining portion of the land in dispute not mentioned in (2) above.”

It would appear that in making his final order, the learned trial Judge overlooked the fact that on the first day of hearing on 20th December, 1973, Mr. Cole learned counsel for the respondent, had drawn the court’s attention to a decision of this court in Ibeziako versus Nwagbogu And Another. (1972) 6 F.S.C. 53 at pages 80-81 on the strength of which he had applied for leave to withdraw items 2 and 3 of the particulars of the respondent’s claim which relate to the injunction and dam-ages for trespass. He then had informed the court that he was proceeding only with items 1 and 4, that is to say, with a declaration of title and possession. The case having been conducted on that footing, we think the learned trial Judge was in error to have awarded the respondent N20 damages for trespass and also to have granted him injunction in the terms which he did. The award of N20 dam-ages for trespass and the order for an injunction are hereby set aside. The order for possession is amended to read: “Possession of the land in dispute verged yellow in Exhibit C”. Subject to that modification, the judgment and order of the learned trial Judge made on the 23rd day of April, 1974 are affirmed. This appeal stands dismissed with cost to the respondent assessed and fixed at N185.00K. Order accordingly.

Appeal dismissed.

 

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