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S.C. 182/1986

3PLR/1985/11  (SC)



(1988) NWLR (Pt.72) 584



KAYODE ESO, J.S.C. (Presided)

AUGUSTINE NNAMANI, J.S.C. (Read the Lead Judgment)









  5. MR. T. A. ADEYEMO
  7. MR. B. A. OLADEPO
  12. MR. SUARA
  20. MR. RAIFU
  21. MR. M. ARIYO
  24. MR. M. A. ADESHINA


  31. MR. A. BELLO
  32. MR. YEKINU



  1. O. Sogbesan, S.A.N. (with him Akin Akinbote) – for the Appellant
  2. A. Aiku – for the Respondent



LAND LAW – Claim for possession and title – Root of title – When deriving from past judgment – Defendants not privy to judgment – Defendant’s root deriving from purchase prior to judgment relied on – Effect.

PRACTICE AND PROCEDURE – Evidence – Onus of prove – Persons in possession, persons not in possession – How title proved. Estoppel – Estoppel per rem judicatam – Judgment against purchaser’s vendor – Whether binding on purchaser – Effect of purchase prior to commencement of action relied on – Effect on the general rule – Evidence in rebuttal – When justifiable.

PRACTICE AND PROCEDURE – Appeals – Concurrent findings of fact by lower court – Mien appellate court may interfere – Calling of evidence in rebuttal – Order 26 rule 22, High Court of Oyo State (Civil Procedure) Rules when applicable.



NNAMANI, J.S.C. (Delivering the Lead Judgment):

In this suit commenced at the High Court, Ibadan, the Plaintiff/Appellant claimed against all the Defendants/Respondents as follows:-

“The Plaintiffs’ claims against the Defendants is for possession of the Plaintiffs land situate, lying and being at Ogo’s Compound, Ojagbo, Ibadan. Annual value is N20.00 (twenty naira)”

Pleadings were ordered, duly filed and exchanged. At the trial 4 witnesses testified for the Plaintiff and many of the defendants gave evidence. It is pertinent to mention, as both lower courts did mention, that there were 3 sets of defendants to this suit the 6th, 8th, 14th, and 17th Defendants, the 3rd, 4th, 6th, 7th, 18th, 21st, 24th, 25th, 27th, 28th, 29th, 30th and 35th Defendants; and 2nd, 5th, 9th, 10th, 11th, 12th, 13th, 15th, 19th, 20th, 22nd, 23rd, 26th, 31st, 32nd, 33rd and 34th.

The third group of defendants were represented by counsel and it is in fact in respect of their case that appeals were taken to the Court of Appeal and to this Court. The learned trial Judge in the High Court, Ayoola, J. painstakingly reviewed the case of the parties before arriving at his decision. He noted that the defence of the defendants who were not represented by counsel was that the land belonged to Ojo Dalegun originally, that the Plaintiffs by their conduct in a Suit No. 36/60 Bella Adelakin v. Buraimoh Abiodun Dalegun have acquiesced in the title of the family of late Ojo Dalegun in the land in dispute. They claimed that they built their respective houses on the land long before the inception of Suit No. 1/33A/64 to which reference will be made later. He also noted that the defence of the defendants represented by counsel was that they were not aware of the dispute in 1/33A/64; that they bought their respective plots of land between 1953 and 1958 and that the Plaintiff and members of his family are guilty of laches, acquiescence, standing by and stale claim. On the other hand, the Plaintiff’s case consisted mainly of previous judgments, on the land in favour of plaintiff Lawani Ajaigbe including 1/33A/64 (Exhibits B and C). Plaintiff contended that he had established title to the land in dispute and that the Court was bound to grant him possession. The Plaintiff claimed that the judgment in l/33A/64 is binding on the defendants and that they are estopped from challenging his title. His case was that the defendants bought the land and built their houses on the land during the pendency of that suit. After reviewing the evidence led by the parties before him, and dealing with the authorities on the issue of onus of proof, the case being one of possession, the learned trial Judge arrived at some conclusions of fact which were bound to pursue the appellant through the Court of Appeal to this Court.

He said:-

“I am particularly impressed by the evidence of the defendants who have given evidence and of the evidence of the 1st defence witness. I believe their evidence that they bought their respective plots between 1953 and 1959. Quite independently of the evidence as to time they built their respective houses, even if I had not believed their evidence as to the time they built their respective houses or if I had some doubt as to that aspect of their evidence would not have affected the credibility I ascribe to their evidence as to the time of purchase of their respective plots, Their evidence on that point was unshaken in cross examination. Furthermore, as shown by the evidence of the 5th Plaintiff witness at least one person had been shown to have purchased a plot in the area even without developing it. When one comes to the question of binding effect of judgment one considers time of purchase and not time of development of the property purchased. I find on the evidence before me that the 2nd, 5th, 9th, 10th, 11th, 12th, 13th, 15th, 19th, 20th, 22nd, 23rd, 26th, 31st -34th defendants bought their respective plots in the years stated earlier in this judgment (i.e. between 1955 – 1959). As regards them even if the onus is on them as to proving that they bought their respective plots before the institution of the action (Suit I/33A/64) against Dalegan, I hold that they have discharged that onus. In the result, the judgment in Suit 1/33A764 has no conclusive probative value as against them. In short, they are not bound by the judgment ………………………… ………………. But these defendants represented by counsel rest their defence on an alternative pillar. They raised by their pleadings equitable defences of laches, acquiescence and stale claim. On the evidence it cannot be disputed that these defendants have built on the land. I have no doubt that the Plaintiff and members of his family knew when these buildings were being erected on the land and did nothing about them”

The learned trial Judge having dismissed the claim against this set of defendants, the plaintiff appealed to the Court of Appeal. That Court (Omo, Onu and Sulu Gambari, JJ.C.A.) dismissed the appeal. Sulu Gambari, J.C. A. concluded his judgment in a way which must make the journey of the Appellant in this Court Hazardous. Said the learned Justice –

“It is my view that unless the appellant can establish that the learned trial Judge did not take proper advantage of his having seen and heard the witnesses, did not properly appraise and evaluate all the evidence before him and did not come to the correct and satisfactory conclusion from the available evidence, I do not see how his findings could be disturbed by this Court.”

The appellant has now appealed to this Court on 5 grounds of appeal which I do not consider ought to be set down here. I may refer to one or two of them later in this judgment.

As to the issues for determination, I am of the view that the formulation by learned counsel to the respondents in his brief appears to bring out the issues more poignantly. In his own view they are:-

“(a)    Whether the respondents are bound by Exhibit B – (i.e. Suit 1/33A/64) a judgment obtained against Ojo Dalegan long after they had purchased the land so as to entitle the appellant to possession of the land in dispute.

(b)     Whether the appellant discharged the onus of proof on him in the circumstances.

(c)     Whether the refusal of the Justices of Appeal to interfere with the learned trial Judge’s exercise of discretion in refusing plaintiff’s application to call rebutting evidence occasioned miscarriage of justice to warrant a retrial”

Because of the nature of the appellant’s counsel’s submission in his brief of argument and in this Court, perhaps I ought to set down his first issue for determination. This according to him is –

“Whether the learned Justices of the Court of Appeal erred in not reversing the decision of the trial Court on the issue of burden of proof for his failure to construe the document Exhibit B, when it is against the Respondent’s vendor, as evidence on which Plaintiff could rely upon as evidence of possession and better right to possession.”

I deem it necessary to start by stressing that the learned trial Judge seemed to have made findings of fact affirmed by the Court of Appeal, which have touched on the main issues to be determined in this appeal. To the extent that the appellant has been unable to show any failure on the part of the learned trial Judge to properly evaluate the evidence before him, the Court of Appeal could not, and this Court will not, disturb those findings either. See the decisions of this Court in Njoku v Erne (1973) 5 S.C. 293; Chikwendu v. Mbamali (1980) 3/4 S.C. 31; Ibodo v. Enarofia (1980) 5 & 7 S.C. 42; Enang v. Adu (1981) 11-12 S.C. 25; Otogbolu v. Oke Inwa (1981) 6-7 S.C. 99; and the more recent cases of Overseas Construction Ltd. v. Creek Ent. Ltd (1985) 3 N.W.L.R. part 13 407 at 413 – 414; Ajadi v. Okenihun (1985) 1 NWLR Part 3 484, 489; Lokoyi v. Olojo (1983) 2 S.C. NLR 127 at 132 In re Mogaji (1986) 1 N.W.L.R. part 19 759 772; It is against this background that one must examine the issues that I have set down above. It is clear that the entire case of the plaintiff revolved around Suit 1/33A/64, tendered in the proceedings as Exhibit B. In paragraphs 4 and 6 of his Amended Statement of Claim, the plaintiff/appellant pleaded as follows:-

“4.     The land in dispute was on 27/11/73 in Suit No. 1/33A/64 Between Lawani Ajaigbe and Buraimoh Ojo Dalegan and others declared the property of the Plaintiff. ………………

  1. During the pendency of the Suit referred to in paragraph 4 above, Buraimoh Ojo Dalegan, the 1st Defendant in Suit 1/33A/ 64 sold portions of the land in dispute to each of the defendants” There was no reference to Ojo Dalegan, the ancestor of Buraimoh in these pleadings.

The heading of Suit 1/33A/64 was,

LAWANI AJAIGBE ……………………. Plaintiff

  1. Buraimo Ojo Dalegan )
  2. Adetutu Laditi )
  3. Aliu Ishola ) …………………………….Defendants
  4. Raufu He Ladunni )
  5. Tijani Ladeji )

The suit which was for declaration of title under native law and custom to a piece of land situate at Ogo’s Compound Oja-Igbo Ibadan was against the defendants as per the writ. The respondents’ reply to the two paragraphs of the Amended Statement of claim is contained in paragraphs 4, 5, 6,7 and 8 of the Further Amended Statement of Defence. They were as follows:-

“4.     The defendants will contend in respect of paragraph 4 of the statement of claim that they were not aware of the dispute in Suit No. 1/33A/64 between Lawani Ajeigbe and Buraimo Ojo Dalegan and others until after the judgment in that case had been delivered.

  1. The defendants aver that they bought their respective plots of land from the family of the late Ojo Dalegan to whom the land originally belonged as a result of a grant which he obtained from Limo family over one hundred years ago since when he had continuously exercised various acts of ownership on the land until portions of it were sold to the defendants.
  2. The defendants aver that at the time they purchased their respective plots of land between 1953 and 1958, they were not aware of any dispute on the land.
  3. The defendants further aver that they had already bought their respective plots of land long before the inception of Suit No. I/ 33A/64 and have built houses thereon long before the commencement of the suit.
  4. The defendants state further that the plaintiff and members of his family were aware of the purchase and the developments made by them on the land and they took no steps whatsoever to let

them know of any claim by them neither were they warned as alleged in paragraph 7 of the Amended Statement of Claim or at all.”

These then were the issues that went to trial. At the conclusion of evidence, the learned trial Judge arrived at the conclusions earlier set down in extenso. At the risk of repetition these were:-

(1)     That the respondents bought their Respective plots between 1953 -1958 long before the inception of Suit 1/33A/64.

(2)     That the respondents had built their houses on their respective plots long before the inception of Suit 1/33A/64.

(3)     That the appellant and his family were aware of these buildings but did nothing about it.

(4)     That Suit 1/33A/64, Exhibit B, was not binding on the Respondents.

As earlier indicated, these findings, which were the result of a careful appraisal of the evidence before him by the learned trial Judge were affirmed by the Court of Appeal. There is nothing that has been submitted to this Court that will justify any interference. The effect of this is that while Exhibit “B” no doubt formed the root of title of the Plaintiff/Appellant, it could only bind the 1st Defendant and the other defendants against whom the appellant succeeded in the High Court. It could not affect land which the respondents had purchased from Ojo Dalegan’s family years before 1964 when the suit in Exhibit B was instituted.

It has long been settled that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase. This principle of law arose from the decision of Romer, J. in Merchantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co. (1894) 1 CH.D. 578, 595. The learned Justice said –

“But then it is said that the English Company is bound, as being “privies in estate” of the American Company, the estate being the land in Mexico purporting to have been charged in favour of the debenture holders. But it is not in dispute that throughout that action the debenture – holders had no charge on the land valid or binding according to the law of Mexico ………………Nothing was decided in that action which in any way bind the land and I cannot see how the English Company even if they could be regarded as having acquired the land subsequent to the judgment, can be said to be estopped, as purchasers of that land by a judgment in no way binding on the land. Moreover, if the claim of the Plaintiff company could be regarded as one affecting the land notwithstanding that no registration of that claim had been made in Mexico, which alone could validly bind the land there, then the English Company would be entitled to say that they were purchasers of the land prior to that action notwithstanding that their title may not have been perfected by registration.”

This judgment was approved by this Court in Ogundiani v. Araba (1978) 6 and 7 S.C. 55 at 84.

The respondents were neither parties to Suit No. 1/33A/64 nor were they privy in estate with the parties therein, the land having been bought from Ojo Dalegan’s family.

Learned Senior Advocate for the Appellant, Mr. Sogbesan, submitted that while the dictum of Romer, J. was approved by this Court, the principle enunciated there can only apply where the vendor’s title is sound. He was of course relying on the passage in the judgment of this Court in Ogundiani’s case (supra). Idigbe, J.S.C. of blessed memory, at p. 86 of the record said –

“Where, therefore, as here, there has been merely a colourable or purported transfer of legal estate or, where, as here, the purchaser got only a questionable legal (and it must be remembered that we have earlier on made it clear that on the doctrine of lis pendens, Ogundiani did not get legal estate) there is no room for the application of the much respected dictum of Romer, J. in Mercantile Investments Co. (Supra) so as to oust the application of the doctrine of estoppel by “standing by “.

Until the transfer of the legal estate is, in fact complete and lawful, the purchaser must be affected by a decision bearing on the title of his vendor not-withstanding that the decision was given in an action commenced after the purported or colourable transfer by the vendor to the purchaser of the legal estate.”

The authoritative espousal of the law does not, however, apply in the instant case. From the findings of the two lower courts, the transfer to the respondents appears to have been complete long before 1964. The case of the appellant was that the respondents bought from the 1st Defendant, Buraimo Dalegan, during the pendency of Suit 1/33A/64. If this were so, on the principles of law pertaining to land acquired pendente lite, the respondents would have acquired no title from their vendor. This contention was rejected by the two lower courts, and there is nothing to justify my coming to a different conclusion. Besides, the case of the respondents, which the two lower courts appear to have accepted, is that they bought their respective plots from Ojo Delegan’s family not from Buraimo Dalegan who was a party to Suit 1/33A/64. Learned Senior Advocate then submitted that even if the judgment in Suit 1/33 A/64, Exhibit B, does not bind the respondents and so cannot be used as estoppel against them, it ought to have been considered as an act of possession. He referred to Talabi v. Adeseye (1972) 8-9 S.C. 20 at 42. In that case the plaintiff had, among other reliefs, claimed the sum of £400 as special and general damages for trespass committed by the defendant on a piece of land at plot 70, Durojaiye Street, Itire, Mushin. She also claimed possession. In her pleadings she not only relied on a conveyance dated 25th June, 1966 and registered as No. 18 at page 18 in Volume 920 of the Lands Registry at Ibadan, but also on a judgment of the Supreme Court SC/293/64 Lasisi Layeni Onitire of Itire v. Ashimowu Durojaiye. The defendant only pleaded title through James Adeoye Daniel who himself obtained in 1955 a conveyance of the land from one Ashimowu Durojaiye Ajiya. The defendant specifically pleaded that he was not bound by the compromise judgment in SC/293/62 because at the time he bought from James Adeoye Daniel he had no knowledge of that judgment. The Supreme Court, on the authority of Mercantile Investment Case (Supra), upheld the defendants contention. The Supreme Court nevertheless dismissed the defendants appeal because on the evidence accepted by the lower court , the plaintiff relied on the radical title of the Onitire family. Coker, J.S.C. concluded there,

“We think therefore that on the whole case the defendant had failed to discharge the onus which the law placed on him after the plaintiff had discharged her own onus.”

With respect, I don’t think that the appellant can rely on the case. As in that case, in the instant case the respondents were not bound by the judgment Exhibit B. Unlike in the Talabi case, it cannot be said that the appellant had discharged the onus which was cast on him to prove a better title or a better right to possession once Exhibit B on which he based his title was not conclusive on the issue. It is also significant that in the instant case the appellant neither pleaded nor led evidence of prior possession. There was, therefore, nothing on which one can, going beyond the principle in Mercantile Investment case, give judgment to the appellant. Finally, on this point, the judgment Exhibit B cannot be regarded as an act of possession against the respondents for they were not parties to it. This is clearly different from the situation in which the judgment in Ndukwe Okafor and Ors v. Agwu Obiwo and Anor (1978) 9 & 10 S.C. 115 at 122, though not binding on one of the parties in that Suit, was nevertheless used to establish long possession. Appellant’s counsel in his brief of argument complained too that the two lower courts erred in not noting the distinction between the burden of proof in a claim of declaration of title and a claim of possession. In his argument, counsel contended that “if this distinction was borne in mind, the learned Justices should have come to the conclusion that the Plaintiff having established a prima facie right to possession of the land in dispute by virtue of Exhibit B which is a judgment against the Respondents’ vendors who had been declared not the owner of land in dispute, the onus on them has been discharged and the onus shifts on the respondents to prove a better right to possession than that of the plaintiff”

The claim of the plaintiff/appellant was for recovery of possession which meant of course that he and his family were not in possession. From the pleadings, it was clear that title was in issue. If the title of the person out of possession is established, the person in possession can only successfully resist the claim for recovery of possession if he shows a better title or a better right to possession. In such a case, title having been established, the onus of proof will shift to the person in possession to show a better title or better right to possession. In the instant case, however, title was very much in issue. While the plaintiff relied on Exhibit B as being binding on the respondents’ vendors, the respondents claimed to have bought from vendors who were not parties to Exhibit B. They were, therefore, not bound by Exhibit B. It is not in dispute that respondents were in possession of the land in dispute for several years. (Long possession has always been recognised as a weapon of defence Agboola v. Abimbola (1969) 1 All N.L.R. 287). The respondents’ claims were upheld by the two lower courts. It seems to me that in such circumstances, the onus clearly lay on the plaintiff/appellant to establish a better title, or a better right to possession that would entitle him to recovery of possession. This onus was not discharged.

The law is that a person who desires to dislodge a person in possession has to show a better title. In Oduola v. Coker (1981) 5 S.C. 197 Irikefe, J.S.C. (as he then was) said:-

“At Common Law, the rule was that anyone who was out of possession must recover the land by the strength of his own title, and not by reason of any defect in the title of the person in possession

Even when it is clear that the person in possession has no right to be there, still the claimant in ejectment cannot turn him out unless he can show in himself a title which is prima facie, good against the whole world.”

This certainly indicates where the onus lies. In Dibie Ajuwa and Ors v. Sebastian Benjamin Odili (1985) 2 N.W.L.R. Pt. 9 710, this Court decided that once title is in dispute, as indeed it was in this case, the plaintiff has to prove either prior possession or better right to possession in order to succeed.

The final point to deal with in this appeal is that which was raised as the second matter for determination in the appellant’s brief – i.e. the refusal of the learned trial Judge to allow appellant to call evidence in rebuttal and the affirmation of this refusal by the Court of Appeal. It was ground 4 of the grounds of appeal to this Court. It read –

“The learned justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge’s refusal to permit appellant to call or adduce rebutting evidence was not a proper exercise of judicial discretion and in proceeding to look into and consider the content of the said documents in relation to the application.


When leave to adduce evidence in rebuttal ought to have been granted having regard to all the circumstances of the case. When the trial Court did not refuse the application on the ground that the evidence if received will be worthless.”

The application to call fresh evidence in rebuttal was brought under Order 26, Rule 22 of the High Court (Civil Proceedings) Rules of Oyo State which provides as follows:-

“If a party opposed to the party beginning calls or leads evidence , the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of Court, call fresh evidence in reply to the evidence given by the other side on points material to the determination of the issues or any of them but not on collateral matters”

The rebuttal evidence sought to be led related to the existence of the house of Buraimo Dalegan on the land in dispute as at the time the defendants/respondents were said to be buying land from Buraimoh Dalegan. Counsel had in the trial Court contended that it arose from the cross-examination of the defendants. It was intended to rebut the evidence of the defendants that at the time they bought their land Ojo Dalegan was living in his house in the land in dispute. The rebutting evidence was a plan prepared by the defendants vendor in 1962.

As had been shown in the pleadings, the respondents had contended that they bought their land between 1955 and 1958 and that they built and lived on the land from then. Appellant’s counsel had contended before the Court of Appeal that, if the evidence sought to be adduced had been received by the learned trial Judge, it would have conclusively shown that the respondent’s evidence was false, forcing the learned trial Judge to the only possible conclusion that the houses claimed to have been built by the respondents long before were in fact built during the pendency of Suit 1/33A/64. The plan in issue No. 1/62 of 27/3/62 was admitted in evidence in Suit 1/33A/ 64 in which Buraimoh Dalegan was 1st Defendant and in fact was tendered by him. Also in issue were the evidence of Buraimoh Dalegan and his brother Tiamiyu Dalegan in Suit 1/33A/64 and Plan No. Ab/1155B also tendered by Biraimoh in Suit 1/33A/64. The Court of Appeal, after due references to Agunbiade v. Sasegbon (1968) N.M.L.R. 223 and Ariku & Anor v. Ajiwogbo (1962) 1 All N.L.R. Pt.4 630 relied on by the appellant therein, held that the learned trial Judge exercised his discretion in refusing the rebuttal evidence correctly. Sulu Gambari, J.C.A. observed –

“It is crystal clear that a witness cannot be told of what a third person said or swore to and be asked if he contradicts same. Any person so asked may simply reply in my view that he was not present when the other person made such statement and since he could not have been afforded an opportunity to cross-examine the maker of the statement or the deposition, he could not be asked whether he had contradicted himself.”

In their briefs of argument to the Court, both learned counsel have argued this matter at length. Appellant’s counsel’s main contention is that having regard to Section 20(3) (b) of the Evidence Act – Statements made by persons from whom the parties to the Suit have derived their interest in the subject matter of the suit –

“The respondents claimed to derive their interest from Dalegan family or a member of Dalegan family and accordingly, Dalegan family is a party interested in the subject mater … ……………………………and being persons from whom the respondents claimed to have derived their interest in the subject matter of the suit, …………….statements made by any member of their family in the previous proceedings including the plan prepared by them showing the features of the land at a particular time are admissions which is (sic) receivable in evidence and could be proved against Respondents”

The main reply of Respondent’s counsel to this in his own brief was that –

“The time as to when Ojo Dalegan built his house or where he was at the time of sale to the respondents was not raised on the pleadings. Any evidence under cross-examination in respect thereof goes to no issue.”

Looking at Order 26, Rule 22 under which the application was made, the learned trial Judge has a discretion, although the discretion has to be exercised judicially. If the discretion is exercised on proper principles a Court of Appeal will not interfere just because it may have exercised such discretion differently. See Evans v. Bartlam (1937) A.C. 480; University of Lagos and Anor. v. Olaniyan and Ors (1985) 1 N.W.L.R. Pt. 1, 156. In the present case, it was the view of the learned trial Judge that the main issue having been raised in the pleadings, and the plaintiff/appellant having given anticipatory evidence, it would not be a judicious exercise of discretion to allow further evidence in rebuttal. I shall return to this later.

I would like to mention first that it is settled that rebutting evidence can only be allowed when the issue to be rebutted has arisen out of cross-examination of the defendant and his witnesses or when the plaintiff has been taken by surprise Rigsby v. Dickinson (1877) 2 CH.D. 24. It is further settled, however, that where the nature of the evidence has been disclosed in the pleadings, it would be an injustice to allow a plaintiff to adduce evidence at the close of the defence. H. A. Caulcrick and Ors v. A. B. Ajetunmobi (1968) N.M.L.R. 466.

It is true that in the course of cross-examination, witnesses in the earlier suit made statements which may have been of assistance to the plaintiff. But those witnesses are not witnesses in the instant case. If they were, such statements can only be used to discredit or contradict such witnesses. They cannot be evidence in the instant case. See Agunbiade’s case (supra).

As for the contention that the statements made by Buraimoh Dalegan and his brother in 1/33A/64 fall within Section 20(3)(a) and (b) of the Evidence Act and are binding on the respondents, I can only refer to the main contention of the respondents that they bought their respective plots of land from Dalegan family. It would be unjust in my view to so construe Section 20(3)(a) and (b) of the Evidence Act as to bind a whole family with the statements made or documents tendered by an individual in a Suit in which he was sued as an individual and not as a representative of the family. In Okafor and Ors v, Obiwo and Ors (supra) Idigbe, J.S.C. when faced with a similar situation observed,

“Something more has to be proved to (i) either identify the appellant’s community with Exhibit B or (2) show that they qua a community know or ought to know of the proceedings in Exhibit, B, and that notwithstanding they stood by while the dispute ‘raged’ in the Courts between the parties thereto. The fact that a member of a community took part in a court action either as a party or a witness is not by itself enough ground for the conclusion that the community to which the member belongs should be identified with that court action”

In the instant case, the lower courts accepted the testimony of the respondents that they bought land from Dalegan family. Dalegan family was not bound by the judgment in 1/33A/64, nor can purchasers from them before that suit be bound.

It is also clear that the plaintiff/appellant was not taken by surprise as to justify the taking of rebuttal evidence. As found by the two lower courts, the main issue in the suit has always been that while the respondents claimed to have bought their land from Dalegan family between 1955 and 1958, long before the inception of Suit 1/33A/64, the appellant claimed that this was false and that they bought and built during the pendency of Suit 1/33A/64. The Respondents in their further Amended Statement of Defence, paragraphs 5 and 6, pleaded what had been stated above. As the learned trial Judge observed, the appellant, well aware of this plea, gave anticipatory evidence. I agree with him that it would have amounted to an injustice to have allowed rebuttal evidence. If a matter as to when Ojo Dalegan built his house, or where he was when land was sold to Respondents arose in cross-examination, such matter will go to no issue as it was never raised in the pleadings by either side. It follows that I think the two lower courts were right in not allowing rebuttal evidence. There was in my view no miscarriage of justice. The question of a retrial, therefore, does not arise. It remains only for me to mention that the issue of laches and acquiescence was raised by the respondents in their pleadings in the alternative. It had to be, for I do agree with learned Senior Advocate Mr. Sogbesan that it would be contradictory to hold the two defences raised by the respondents as going together. The defence of laches etc. would arise if the appellant had established his root of title against the respondents. In this case, he did not. The learned trial Judge found that the plaintiff and his family knew when the respondents were building their houses on the land in dispute but did nothing. This is not now important since I have, as found by the two lower courts, agreed that Suit 1/33A/64 on which appellant based his title was not binding on the respondents who had purchased their land before the suit was commenced.

For all the foregoing reasons, this appeal has failed, and I accordingly dismiss it. The judgments of the High Court of Justice, Ibadan dated 14/7/82 and the Court of Appeal, Ibadan Judicial Division dated 28th October, 1985 are hereby affirmed. There will be costs assessed at N500 in favour of the respondents.

ESO, J.S.C.: I had a preview of the judgment which has just been delivered by my learned brother Nnamani, J.S.C. and I am in complete agreement with his reasoning, conclusions and orders contained in the aforesaid judgment.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Nnamani, J.S.C. I agree, for the reasons contained therein that the appeal has failed. Accordingly, it is hereby dismissed with N500.00 costs to the respondents.

BELGORE, J.S.C.: I have read in advance the draft of the judgment by my learned brother, Nnamani, J.S.C. I agree entirely with his reasoning and conclusions. I also dismiss the appeal with N500.00 cost to the respondents.

NNAEMEKA-AGU, J.S.C.: In an Ibadan High Court, the appellant, as plaintiff, brought an action against the respondents (defendants) claiming possession of land situate, lying and being at Ogo’s Compound, Ojagbo, Ibadan.

The action was dismissed by Ayoola, J., in the High Court. On the issues joined on the pleadings which have been elaborated upon by my brother Nnamani, J.S.C., he made a number of vital findings of fact on the evidence before him. The most important were:-

(i)      That the respondents bought their respective plots of land in the land in dispute between the years 1953 and 1958 and had built on their plots before suit No. 1/33A/64 (Exh. B) was commenced in 1964.

(ii)     That the appellant and his family were aware when those buildings were going on, but did nothing to stop the buildings,

(iii)    That as the respondents had acquired title to their respective plots by purchase before suit No. 1/33A/64 was instituted, that suit was not binding on them.

The appellant appealed to the Court of Appeal against the High Court judgment. After carefully examining the issues raised in the appeal, the Court of Appeal, Ibadan Division, Per Sulu-Gambari; J.C.A., Omo and Onu JJ.C.A. concurring, dismissed the appeal and affirmed the decision of the High Court.

The appellant has appealed further to this Court. The issue for determination are in sum: whether the respondents are bound by the suit, Exhibit. B; whether the appellant discharged the onus of proof and whether the refusal of the learned trial judge to allow the appellant call rebuttal evidence was wrongful exercise of judicial discretion. These issues have been very fully and carefully examined and resolved in the lead judgment of my brother, Nnamani, J.S.C. I agree with his views and adopt them as my own. I only wish to reiterate that this Court will not interfere with concurrent findings of facts and judgment of the High Court and the Court of Appeal unless the appellant has satisfied the Court that there are special circumstances which would warrant the intervention of this Court, as the ultimate Court, in the interest of justice. See: Akpene v. Barclays Bank of Nigeria Ltd. & Anor.(1977)1 S.C.1; Victor Woluchem v. Simon Gudi (1981) 5 S.C. 319, p. 326 -330; Mogo Chikendu v. Nwanegbo Mbamali & Anor. (1980) 3-4 S.C. 31, p. 75. No such circumstances have been shown to exist in this case.

Also my brother has fully and in my respectful view, correctly dealt with the non-binding effect as against the respondents of Exhibit B (suit No. I/ 33A/64) which was commenced long after they had acquired title to the land in dispute by right of purchase: Ogundiani v. Araba (1978) 6 & 7 S.C. 55, p, 84.

This appeal fails and is hereby dismissed. I subscribe to the orders made in the lead judgment.

Appeal Dismissed


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