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24TH MAY, 1968.

SUIT NO. SC 184/66.

3PLR/1968/9  (SC)










A. Adesanya – for Appellant

David (F. Sasegbon with him) – for Respondent



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



Land Law – Declaration of title – Acts of ownership – Acts of possession as exclusive owner for many years without objection.

Evidence- Evidence given in former proceedings – Relevance of in subsequent proceedings – Relevance as test of admissibility.



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

This appeal is from the judgment of Kesler, J. (as he then was) given at the Ikeja High Court (Suit No. Ik/173/62) on the 22nd April, 1965, by which he decreed that the plaintiff (now respondent) is the owner of a piece or parcel of land situate at Sasegbon Village, Tabontabon in the Agege District of Lagos State, and ordered the defendant (now appellant) to surrender possession of same to the plaintiff. The plaintiff’s Action was for a declaration of title to the land shown edged brown on the plan produced in evidence at the trial marked Exhibit A (i.e. plan No. CT/135/63 by surveyor Olumide and dated the 9th July, 1963) and for possession of that land. The primary facts were not in dispute but the land in question is a small parcel of out larger piece of land claimed by the plaintiff as having been purchased by his own father, the late Mr. T. D. Sasegbon. The entire land out of which the parcel In dispute was carved originally belonged to the Okoya Family of Agege and the defendant claimed to be entitled to possession of the area in dispute by virtue of a grant from that family of which he himself was a member. The claim of the plaintiff rests on the purchase by his father of the entire area of land edged red in Exhibit A from the Okoya Family. After a hearing lasting six days and in a considered judgment, Kesler, J. adjudged the land in dispute to belong to the plaintiff and those represented by him. In the course of his judgment he observed as follows:

‘The Evidence before the Court supports plaintiff’s case that his late father bought the land from Okoya family and that it was an absolute sale.”

From this judgment the defendant has appealed to this Court. It was sought on behalf of the defendant to adduce before us additional evidence by way of putting in a new plan. Counsel for the defendant himself admitted that the plan was in the possession of the defendant during the trial and indeed that Counsel for the defendant expressly withheld the production of it then. A note to this Effect appears in the record of appeal. There were other reasons why the application to adduce additional evidence could not have been granted and the defects of the application were inherrent In it. We therefore refused it. Additional grounds of appeal were however allowed to be filed and argued.

The arguments tend to widen the ambit of an issue which to us is circumscribed, for the only question is whether or not the land in dispute was part of that sold by the Okoya Family, i.e. the ancestors of the defendant, to D. T. Sasegbon, i.e. the father of the plaintiff and those represented by him. Of the actual sale of the land and the circumstances of it we know precious little but we are in agreement with the learned trial Judge that there is a plethora of evidence on the exercise by the father of the plaintiff of acts of possession on the land in dispute in the fashion of an exclusive owner for many years.

One of the grounds of appeal argued was that as in the course of a previous litigation the plaintiff had given evidence that his late father had bought only 18 acres of land from the Okoya Family, he could not now claim that his father had bought 28 acres. The plan used by the plaintiff in that case was produced and admitted in evidence as Exhibit G. The former proceedings were Instituted at the in-stance of the then Minister of Lagos Affairs against both the present plaintiff and the Okoya Family for the determination of the persons entitled to compensation by the Government for portions of land compulsorily acquired for public purposes. The plan Exhibit G shows that the area then concerned lay to the north of the total area claimed by the Sasegbon Family. We cannot accept this argument of counsel for the defendant whether it is based on an estoppel by which the plaintiff might not assert any claim to any larger area (which was how counsel for the defendant put his case), or whether ft was put forward as a ground for which the learned trial Judge must necessarily discredit the evidence of the plaintiff. As clearly shown on the plan Exhibit G the acquisition area in the previous proceedings was no-where near the land now in dispute and no reasons were shown why the land shown as claimed by the Sasegbon Family in that plan (i.e. Exhibit G) should be regarded as all the land of that Family. In the High court in the present proceedings the defendant claimed for the Okoya Family, as indeed it was claimed in the previous litigation involving the parties, that the father of the plaintiff was a customary tenant of the Okoya Family in respect of the land he occupied. That story was disbelieved in the previous proceedings as well as In this present one and the learned trial Judge expressly disbelieved the testimonies of the defence witnesses as to the exerercise of acts of possession on those lands by the Okoya Family.

Another complaint was that the Judge was in error in basing his finding that the plaintiff’s father bought 28 acres of land from the defendant’s ancestor on the evidence, which he accepted, of a witness called by the plaintiff who had testified that about forty years ago (he was giving evidence on the 20th January, 1965) land in Agege and Ikeja cost about 30/- to 40/- per acre. It is manifest that the Judge’s arithmetic was not accurate and that if the evidence of the witness is accepted, as indeed it was, the amount of £148.3/- paid by the plaintiff’s father to the Okoya Family would have purchased at least 74 acres of land. The plaintiff made no such claims and gave no such evidence himself. The point is however of no significance to the Judge’s overall appraisal of the case on both sides and even If the evidence about value of land at the time the witness descrbied was ignored the evidence of possession by the Sasegbon Family still in our view remains over-whelming.

We had earlier observed that evidence about the actual sale was little. No plans were made or agreed at the sale which was stated to have taken place in 1919. The plaintiff’s father, D. T. Sasegbon died on the 24th April, 1955. In his lifetime there was evidence which the learned trial Judge accepted that he granted land to a church to be built on a portion of the land and also granted land to be used as a cemetery by the church. The area granted to and used by the church as a cemetery lies to the south of the area now in dispute, fixing the disputed area between the northern portion of the land adjudged to belong to the Sasegbon Family in the previous litigation involving both parties, and the cemetery land conceded before us by counsel for the defendant as belonging to the Sasegbon Family. One of the witnesses called by the plaintiff at the trial and whose evidence was accepted by the learned trial Judge was a rent-paying tenant who had occupied a portion of land claimed by Sasegbon and which included the parcel now in dispute. The witness testified that he occupied that land as tenant of D. T. Sasegbon for many years until he was driven away therefrom by the defendant immediately before the commencement of the present proceedings. Section 45 of the Evidence Act may as well be relevant here but the fact of a user by the Sasegbon Family for the several years in-between without any objection or protest from the Okoya Family left no room for any serious doubt about the sale to D. T. Sasegbon of that land by the Family and of their total abdication of any claims or interest in the land thereafter.

Before ending this judgment we wish to make some observations on a document which was produced and admitted in evidence as Exhibit F. This document was the Record of Proceedings In the earlier case concerning the parties. Whilst evidence given in previous proceedings by a party may be relevant for the purpose of examining the particular witness who gave that evidence or his privy in subsequent proceedings, such evidence is not eo ipso evidence in the fresh proceedings. In Alade v. Aborishade (1) this Court, dealing with this point observed as follows:-

‘True it is that, in the last instance in particular, the learned Judge, in accepting as evidence before him the evidence given in the 1951 case used that evidence in a manner adverse to the respondent, in whose favour he ultimately gave judgment, but that does not alter the legal position which this Court has stated on numerous occasions which is that evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that. The pleadings in an earlier case may, however, be referred to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other to the later case. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of res judicata, but it can only be used there provided the incidents necessary to support such a plea are fully observed.”

In the present case the proceedings in the earlier case were produced in toto but it is fair to point out that the Judge placed little or no reliance on that Exhibit and certainly did not base his judgment on it. Admissible evidence under the Evidence Act is evidence which is relevant and it should be borne in mind that what is not relevant is not admissible.

We have already discussed our views on this appeal. All the grounds of appeal argued for the appellant fail and the appeal must be and it is hereby dismissed.

Appeal dismissed.



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