MADAM ISABELLA AKINHANMI & ORS (APPELLANT)

v.

OMOTAYO DANIEL & ORS (RESPONDENT)

(1977) All N.L.R. 229

Division: Supreme Court of Nigeria

Date of Judgment: 24 June, 1977

Case Number: SC.434/75

Before: (Udoma, Sowemimo, Irikefe, JJ.S.C)

The appellants are the defendants in the consolidated suits instituted by the respondents at the Lagos State High Court seeking for a declaration of title to certain plots of land situate, lying, and being at Agia Village, Itire via Mushin, possession of the said plots of Land, damages for trespass, and an injuction restraining the defendants, their servants or agents for further trespassing on the said land.

The case for the plaintiffs in the lower court is that area of land of which the plots in the consolidated action form a portion originally belonged to Onitire family. The defendants do not dispute that this is so. The dispute however centred on whether chief Onitire granted a large portion of the area to the Agia family absolutely under native law and custom and that the Agia family under conveyance tendered as Exhibits B and C transferred their interest to J. A. Daniel. The defendants averred that this was not so and when the Onitire family leased the plots of land to them, they had not divested themselves of the original title in the land and that their lease hold interests were valid.

The trial Judge reviewed the evidence before him and held that the land conveyed to Pa Daniel by Exhibit B was part of the land found in suit No 1/108/55 to have belonged to the Agia family absolutely under customary law. He held further that the defendants went on the land in dispute in each case subsequent to Pa Daniel's taking possession of the land after its purchase.

The defendants were dissatisfied by this judgment, they therefore appealed to the supreme court and the only point of substance raised by the appellants was that there was no proof of the land held to have been granted absolutely to the Agia family by the Onitire family in suit No. 1/108/55 and that unless the plan of the land tendered in that suit was before the court in the consolidated suits, the respondents as plaintiffs in that suit could not be held to have proved their claim.

HELD:

(1)     The parties are bound by the triable issues raised in their pleadings at a trial. In the instant case both parties know the land in dispute and therefore there was no need for identification. Both parties have agreed that they formed portions of land claimed by the Agia family under native law and custom. It must be a desperate attempt to raise in the Supreme Court on appeal, an issue which both parties at the trial agreed not to be in dispute.

Appeal dismissed.

H. A. Lardner for the Appellant

Akin Sikuade for the Respondent

Sowemimo, J.S.C.:-The Appellants are the defendants in the consolidated Suits 1/119-122/58 instituted by the respondents, as Plaintiffs, at the Lagos State High Court holden at Lagos for (a) a declaration of title to certain plots of land situate, lying and being at Agia Village, Itire via Mushin, (b) possession of the said plots of land (c)£600 damages for trespass from the 1st and 2nd defendants and from each of the 3rd and 5th defendants; and (d) an injunction against the defendants, their servants or agents from further trespassing on the said land.

The case for the Plaintiffs in the lower Court is that the area of land of which the plots in the consolidated actions form a portion, originally belonged to Chief Onitire of Itire or preferably the Onitire family. The defendants do not dispute that this is so. The dispute however centred on whether Chief Onitire granted a large portion of the area to the Agia family absolutely under native law and custom and that the Agia family under conveyances tendered as Exhibits B & C transferred their interest to J. A. Daniel. The defendants averred that this was not so and that when the Onitire family leased the plots of land to them, they had not divested themselves of the original title in the land and that their leasehold interests were valid.

The learned trial Judge reviewed the evidence before him and made, inter alia, the following findings:-

"The examination of late Pa Daniel's title to the land of which the plots were here in dispute form part must of necessity begin with his deed of conveyance Exhibit B. That deed recites that the land originally belonged to Chief Onitire whose rightful successor granted part of it to the vendor's grandfather, the original Ajiya (Agia). The deed also recited the fact that part of the Ajiya land was being sold to enable the vendor's family defend an action on the land then pending in court against them by the Onitire family. The Deed of Ratification later executed by the Ajiya family (Exhibit C) in favour of Pa Daniel recited that the suit said to be pending in the deed, Exhibits B & C renumbered 1/108/55 had been decided in favour of the Ajiya family.

The proceedings in suit No. 1/108/55 were admitted as Exhibit D in these cases and is very much the pivot on which these cases must be decided. Taylor J (as he then was) found that the land in dispute had been given absolutely in accordance with native law and custom to Agia and that the land then vested in the defendants therein as descendants of Agia and the necessary declaration of title under customary law was granted to the defendants in that case (Pa Daniel's vendors) in respect of the land shown edged pink on the plan No. CT.41/55 of 21/4/55 which was Exh. C in the case."

"On that evidence, which I accept there can be no doubt that the land conveyed to Pa Daniel by Exh. B was part of the land found in suit No. 1/108/55 to have belonged to the Agia family absolutely under customary law."

"On the facts of the case I prefer the evidence of the 1st plaintiff and his witnesses to that of the defendants and their witness. I have no doubt that the defendants went on the land in dispute in each case subsequent to Pa Daniel's taking possession of the land after its purchase. The defendants believed that the land belonged to the Onitire family to lease to them but that belief is erroneous. The Onitire family had long ago given the land over to the Agia family represented at the time by the vendor to Pa Daniel. I find as a fact that the 1st and 2nd defendants trespassed on plots 68, 69 and 102, the 3rd defendant on plots 6, 7, 27 and 28, the 4th defendant on plot 11 of the Daniel allotment plan, Exhibit H."

"The plaintiffs continued this action as the children and the administrator and the administratices of the estate of their late father and I think the judgment in this matter should ensure to the benefit of the estate. I would therefore make a declaration of title that plots 68, 69, 102, 6, 7, 27 and 28, 3, 4 and 11 of the Daniel Allotment plan No. L and L/C 727A: T.P.A. 050A belong in fee simple to the estate of the late J. A. Daniel. The 1st and 2nd defendants shall jointly and severally pay £100 damages for trespassing on plots 68, 69 and 102 thereof; the 3rd defendant shall pay £100 damages for the trespass by him on plots 6, 7, 27 and 28; the 4th defendant shall pay £50 for trespassing on plots 3 and 4 and the 5th defendant shall pay £25 for trespassing on plot 11. The defendants shall by 30th September, 1972, give up possession of the respective plots on which they have been found to be trespassers. There shall also be an injunction restraining each of the defendants, their servants or agents from further trespass on the said plots from October, 1, 1972."

On appeal before us the only point of substance raised by learned Counsel for appellants was that there was no proof of the land held to have been granted absolutely to the Agia family by the Onitire family in Suit No. 1/108/55 and that unless the plan of the land tendered in that suit was before the Court in the consolidated suits, then the respondents as Plaintiffs could not be held to have proved their claim. The short answer to this argument was that both in the pleadings and the evidence, the identities of the plots of land, as being within the Agia portion of the land sold to J. A. Daniel was never made a triable issue. Both parties knew the land and the appellants' case was that the Onitire family never granted the land to the Agia family and relied in support on a consent judgment of the Supreme Court setting aside the judgment of Taylor J. (as he then was) in Suit 1/108/55. Learned Counsel, quite rightly in our view, conceded that the consent judgment had no effect whatsoever on the accrued right of J. A. Daniel to the estate in dispute. This concession will obviously remove the main defence of the appellants to the claims in the Lower Court. Learned Counsel however, for the first time, raised the issue that the plan in Suit 1/108/55 not having been tendered, there is therefore no proof connecting the piece of land in dispute in this case to the area of land declared to the Agia land.