IBADAN CITY COUNCIL AND ANOTHER. V. AJANAKU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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IBADAN CITY COUNCIL AND ANOTHER.

V.

KADRUS AJANAKU

SUPREME COURT OF NIGERIA

31ST JANUARY, 1969.

SUIT NO. SC 353/1966.

3PLR/1969/49  (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:    

ADEMOLA, C.J.N.

LEWIS, J.S.C.

MADARIKAN, J.S.C.

 

REPRESENTATION

Chief F.RA Williams – for Appellant

Yinka Ayools – for Respondent

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

Civil Practice and Procedure – Pleadings – Basis on which action fought in the court of trial – New case on appeal – Whether permissible

Equity – Equity arising from conduct – Equitable estoppel – Protection by court – Power of court to determine in what way the equity could be satisfied

Remedies – Damages – Principles governing interference by appellate court.

 

MAIN JUDGEMENT

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

In the High Court, Ibadan, the plaintiff, suing as the head of Ajanaku Family, took out a writ of summons (Suit No. 1/125/64) against the defendants claiming £2,000 damages for trespass and an injunction to restrain further acts of trespass.

 

On the 23rd of February, 1965, Fatal-Williams, J. (as he then was) gave judgment for the plaintiff granting him the injunction sought and awarding damages as follows:

 

“1.     That the land in dispute edged yellow in the plan No. BK 5903 (Exhibit ‘A’) Is part of a piece of land leased, free of rent, to one Momodu Kafi, father of the Plaintiff, by the Bale and Council of Ibadan by a Deed of Lease dated 15th September, 1919 (Exhibit ‘B’), for as long as he, Momodu Kafi (including his successors in title) shall “Occupy the same”.

 

2. That the house known and numbered as NW4/117 Feleye Street, Ibadan, was eventually built on the said land edged red in the Deed of Lease (Exhibit “B”) by the plaintiff’s family.

 

3. That the house marked ‘A’ in the land in dispute on the plan Exhibit “A” was part of the building known and numbered as NW4/117.

 

4. That the 1st defendant is the successor in title to the Ibadan District Council which in turn was the successor in title to the Ibadan Native Authority, the successor in tide to the original lessor – the Bale and Council of Ibadan.

 

5. That in 1954, the tat defendant’s predecessor – the Ibadan District Council – decided to construct a one way road known as Feleye Street.

 

6. That this road which was constructed between 1956-1957, passed through the land leased to the plaintiff’s father in Exhibit “B”.

 

7. That as a result, part of the house at No. NW4/117 affected by the said Road as shown in the sketch plan (exhibit “M”) was demolished with the knowledge and consent of the plaintiff who was paid the sum of £381:14s:0d as compensation as shown in the payment voucher (Exhibit “G”).

 

8. That the remaining part of the house shown in the area edged yellow In the plan (Exhibit “A”) was demolished by the 1st defendant In March, 1964; and

 

9. That after the demolition, the land edged yellow in Exhibit “A” was taken over by the 2nd defendant and is now used as an access road to its petrol station on the adjoining piece of land”.

 

The Issues involved in the case were thus narrowed down considerably and both in the High Court and this Court, the main Issue was whether the 1 at defendant had acquired the whole or only part of the building known as NW4/117 Feleye Street. The Judge took the view that as it was the defendants who maintained that the whole building had been acquired by the 1st defendant, the onus was on them to establish this; and that having failed to discharge this onus, he was unable to hold that there was an acquisition of the whole building. It is that portion of the judgment which was attacked in the 3rd ground of appeal which reads:

 

3. The learned trial Judge erred in law and on the facts in holding that the first defendant had not discharged the onus of proving that there was an acquisition of the whole of the plaintiff’s property particularly when

 

(i)      the plaintiff did not plead that only part of the property in dispute was acquired in 1954;

 

(ii)     if any issue on the point was properly before the court, the onus was on the plaintiff to prove that only part of the property in dispute was acquired in 1954;

 

(iii)    the court was perfectly satisfied that there was in fact an acquisition of the property in 1954, but was left in doubt as to whether the whole or only part of the property was acquired; and

 

(iv)    on the evidence before it, the court ought to have found that the whole of the property in dispute was acquired in 1954″.

 

On behalf of the appellants, Chief Williams contended that the Judge was wrong in placing the onus on the defendants. He pointed out that it was common ground at the trial that the 1st defendant had acquired the plaintiff’s building for widening Feleye Street, and argued that as it was the plaintiff who asserted that only part of the building had been acquired, the onus was on him to prove this assertion. He referred us to Exhibit G which is a copy of Payment Voucher No. WD. 116/54-55 dated the 14th of June, 1954 for £381:14s being compensation paid by the Ibadan District Council to the plaintiff for demolition of his house No. NW4/117 in Feleye Road, Ibadan, and submitted that the wording of Exhibit G which was duly receipted by the plaintiff suggests that £381:14s was paid as compensation for the whole building and not for only part thereof. Counsel also relied on Exhibit L dated the 22nd October, 1956, In which the plaintiff acknowledged receipt of £38:10s from the Ibadan District Council as compensation in full and complete satisfaction and discharge of all claims made by him in respect of all rights and Interest in the lands situate at NW4/117 Feleye Street, Ibadan.

 

In reply, Mr. Ayoola argued that having regard to the pleadings, the onus was on the defendants to justify their entry upon the land in dispute, and in the alternative he submitted that even if the onus had been on the plaintiff, it has been discharged because the Judge found as a fact that the portion edged yellow in Exhibit “A” was not acquired by the 1st defendant. Counsel went further to submit that in making this finding, the Judge accepted the evidence of the plaintiff who was the only witness at the trial who testified of his own personal knowledge regarding events connected with the acquisition.

 

With regard to this ground of appeal, the relevant averments in the pleadings are contained in paragraphs 2,3 and 4 of the Statement of Claim and paragraphs 5 to 8 of the 1st defendant’s Statement of Defence as follows:

 

Statement of Claim:

 

“2.     The land in dispute is edged pink on the plan attached hereto.

 

3. The plaintiff’s family is the owner of the land in dispute and has been in possession of the said land from time immemorial, and the plaintiff’s family built on the said land a house in which members of the family Including the plaintiff lived.

 

4. On or about 23rd March, 1964 the defendants through their agents unlawfully entered Into the said land edged yellow and demolished the plaintiff’s house on the land thereof.”

 

Statement of Defence:

 

“5.     With reference to paragraph 3 of the Statement of Claim the 1st defendant says that:

 

the plaintiff’s family was in possession of the said land with the knowledge and consent of the 1st defendant.

 

(ii)     there was built on the land the house known as No. NW4/117 marked ‘A’ in the plan attached to the Statement of Claim.

 

(iii)    on 14th June, 1954, the plaintiff agreed to the demolition of the said house In order to make way for road improvement in Ibadan, by the defendant’s predecessor, the Ibadan District Council subject to compensation.

 

(iv)    the 1st defendant’s predecessor paid to, and the plaintiff received the sum of £381:14s:0d, as compensation for the demolition of the said house.

 

(v)     every other allegation of fact contained in the paragraph is denied.

 

6. At the time of the alleged trespass referred to in paragraph 4 of the Statement of Claim, the area marked ‘A’ edged yellow in the plan attached to the Statement of Claim was the free-hold of the defendant, and the defendant had the right to possess same, and that the plaintiff was a licensee thereon, wherefore the defendant through its agents entered thereon of its own right.

 

7. The act complained of in paragraph 4 of the Statement of Claim was done by the defendant under and by virtue of and In pursuance of agreement referred to in paragraph 5 above.

 

8. The plaintiff is estopped from denying the right of the defendant to demolish the said house by his acceptance of the said compensation in June, 1964.”

 

The defence of the 2nd defendant/company was that the land in dispute was leased to them by the 1st defendant.

 

We are of the opinion that having regard to the pleadings, the onus was on the defendants to establish that the 1st defendant had acquired the whole house from the plaintiff and that the learned trial Judge was right in so holding. We are also satisfied that on the evidence before him, he was fully justified in coming to the conclusion that the defendants have failed to discharge this onus, and we do not consider that the judgment can be successfully attacked on the 3rd ground of appeal.

 

Chief Williams next argued the 1st and 2nd grounds of appeal together. They read:

 

1. The learned trial Judge erred in law in failing to observe that on the pleadings filed by the parties to this action, one of the main issues which fell for decision was whether the plaintiff is the owner of the land in dispute as alleged by him in the Statement of Claim, or whether he is no more than a licensee as alleged in the Statement of Defence of the first defendant.

 

2. The learned trial Judge erred in law in failing to observe that the Deed of Lease Exhibit “B” upon which the plaintiff relied to prove his title Is void and Ineffective because it purported to be a lease for an indefinite term.”

 

Counsel submitted that the plaintiff’s root of title is a purported Lease (Exhibit B) dated the 15th of September, 1919, between the predecessor in title of the 1st defendant, the Bale and Council of Ibadan, on the one hand, and the plaintiff’s father, Momodu Kafi, on the other hand, whereby, the Bale and Council demised a parcel of land (portion of which is the land now in dispute) to Momodu Kafi ‘to hold the same unto the lessee free of rent for such period as the lessee shall occupy the same”. He Invited our attention to the case of Lace v. Chandler where k was held that a tenancy ‘for the duration of the war’ does not create a good leasehold interest, the term of the tenancy being uncertain, and also, that it was impossible to construe the tenancy for a long period, e.g. 99 years, determinable on the cessation of the war. Relying on Lace’s case (supra) counsel argued that in as much as Exhibit B is for an uncertain period it Is void and cannot create a good leasehold Interest. This argument raises a novel point which, for our part, we feel k unnecessary to consider any further in deciding this appeal because assuming Chief Williams is right in his submission that Exhibit B does not create a good leasehold Interest, then the testamentum clause therein would be of no effect. It reads as follows:

 

“Witnesseth that in consideration that the lessee has surrendered and hereby surrenders any title claimed to be held by him to the land hereafter described, the lessors hereby demise to the lessee all that parcel of land etc, etc.”

 

In that event, there would have been no valid surrender to the Bale and Council of the title held by Momodu Kafi, the plaintiffs father, who was the original owner of the land, and consequently the original rights of the plaintiff’s family in the land would revive.

 

Regarding the plaintiff’s title to the land in dispute, Mr. Ayoola submitted that In the lower court, the case was fought on the basis that the plaintiff had an interest which was capable of being acquired and Indeed which had been acquired by the 1st defendant, and that the only issue in that court was the extent of the property so acquired. He further submitted in the alternative that, on the facts of this case, an equity has been created by estoppel which would protect the Interest of the plaintiff on the land. In support of this submission, he referred us to the case of Inwards and others v. Baker the facts of which were stated In the headnotes as follows:

 

“In 1931, a son wished to build a bungalow as his house, and to acquire for that purpose a piece of land owned by a stranger; but the price of that land was beyond his resources. His father who owned some six acres of land in the district, said to him: ‘Why don’t you build the bungalow on my land and make It a bit bigger?” So encouraged, the son gave up his plan to buy the other land, and built the bungalow on his fathers land, largely by his own labour. The cost was some £3110, of which the son provided £150 and the father the balance. The son went Into occupation and lived in the bungalow continuously thereafter, in the expectation and belief that he would be allowed to remain there for his lifetime or for as long as he wished. His father visited him from time to time. The father died in 1951 without even having made any binding contractual arrangement or promise as to his son’s occupation or its duration. Under the fathers Will, made in 1922, the land vested In trustees for the benefit of persons other than the son. In 1963, the trustees of the Will brought proceedings for possession of the bungalow, and the County Court Judge made an order for possession.”

 

Against that order, the son appealed to the Court of Appeal which held, allowing the appeal, that where a person expended money on the land of another in the expectation, induced or encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity was created such that the court would protect his occupation of the land, the court had power to determine In what way the equity so arising could be satisfied. The court then decided to satisfy the equity by allowing the son to remain in occupation of the bungalow for as long as he desired.

 

in Inward’s case (supra), Lord Denning, M. R. made the following observations at page 217:

 

“So in this case, even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at the circumstances and see whether there is an equity arising out of the expenditure of money. All that Is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not allow the expectation to be defeated where it would be inequitable so to do. In this case it is quite plain that the father allowed an expectation to be created in the son’s mind that this bungalow was to be his home. It was to be his home for his life or at all events, his home so long as he wished it to remain his home. It seems to me, in the light of that equity, that the father could not In 1932 have turned to his son and said: “You are to go. It is my land and my house”. Nor could he at any time thereafter so long the son wanted it as his home”.

 

At page 218, Dankwerts L.J. said:

 

“It seems to me that this is one of the cases of an equity created by estoppel, or equitable estoppel, as it is sometimes called, by which the person who has made the expenditure is induced by the expectation of obtaining protection and equity protects him so that an injustice may not be perpetrated”.

 

In the instant case, the plaintiff’s father, Momodu Kafi, was the original owner of a parcel of land part of which is the land now in dispute. He was in possession of the land until he died, and after his death, the plaintiff and other children of the deceased were in undisturbed possession of the land until the 23rd of March, 1964 when, as stated on the Writ of Summons, the defendants trespassed on the land. By virtue of Exhibit B dated the 15th of September, 1919, Momodu Kafi surrendered his title in the land and the 1st defendant’s predecessor in title demised the land to him free of rent for such period as he and his successors in title shall occupy the same. This was sufficient to create an expectation in the minds of Momodu Kafi and his successors in title that they are entitled to remain in occupation of the land free of rent for an indefinite period. It seems to us only reasonable to infer that it was on the strength of this that buildings were erected on the land by the plaintiff.

 

In these circumstances, we consider that an equity was created by estoppel to safeguard the plaintiff’s Interest and protect the buildings he erected on the land as against the 1st defendant whose predecessor in title was a party to Exhibit B, equity will therefore come to the aid of the plaintiff to ensure that injustice Is not perpetrated and that he and his successors are allowed to remain on the land for an indefinite period free of rent as agreed upon in Exhibit B. This disposes of the 1st and 2nd grounds of appeal.

Finally, Chief Williams complained about the award of £600 as general damages against both defendants jointly and severally. He referred to the Statement of Claim wherein the sum of £2,000 claimed as special and general damages in the writ was amplified as follows:

 

‘Wherefore the plaintiff claims as value of house demolished £1,000 and general damages £1,000″.

 

Counsel pointed out that after awarding special damages against the 1st defendant and before awarding general damages against both defendants, the learned trial Judge indicated that he took a serious view of the high handed manner in which the defendants carried out the demolition of the building. He thereafter awarded £600 as general damages. Counsel argued that the evidence did not justify this award and that nominal damages ought to have been awarded.

 

It was not suggested that in awarding general damages, the learned trial Judge applied wrong principles of law. On the facts of this case, we cannot say that the award of £600 as general damages is unreasonable, punitive or manifestly excessive; and we are therefore not prepared to disturb it.

 

In the result, this appeal falls on all grounds and it is hereby dismissed.

 

Appeal dismissed.