ALHAJA KUDI WAHAB FEYISITAN & ANOR v. ALFA RASAK ONISEMO & ANOR
(2018)LCN/12023(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/L/594/2006
RATIO
EVIDENCE: PROOF OF TITLE TO LAND
“I cannot agree less; this was traditional evidence in proof of title of land. Therefore the land in dispute is covered by Lagos State native law and custom. Section 68 of the Limitation Law of Lagos State specifies that the limitation law does not apply to any land subject to customary law. In MRS GLADYS ABIADE MAJEKODUNMI & ORS v MUTIU ABINA (2002) LPELR 1826 (SC) the apex Court per UWAIFO, JSC at page 17, para C held that the Limitation Law of Lagos State does not apply to land which is subject to customary law.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
EQUITY: THE EFFECT OF A CROWN GRANT
“The true position in law on the effect of a crown grant has been clearly demonstrated in IDOWU WASAW v CHIEF SAKAIYAWO OSHODI 11 NLR 10 at 11 that the crown grant were only grants in trust and that they left the interest in the properties whether of occupiers or of the chief exactly where they had been, to wit firmly within the bounds of customary law. See TIJANI JOLASUN v NAPOLEON BAMGBOYE (2010) LPELR 1624 (SC) where the apex Court held concerning the effect of a crown grant as follows: ‘Generally speaking, where an applicant is relying on an instrument of grant like a conveyance, mere production of a valid instrument does not necessarily carry with it an automatic grant. THE application for a freehold interest in the property cannot succeed unless certain questions are inquired into by the Court (a) whether documents are genuine and valid (b) whether it has been duly executed stamped and registered (c) whether the grantor had the capacity and authority to make the grant (d) whether the grantor had in fact what he purported to grant (e) whether it had the effect claimed by the holder of the instrument. ENILOLOBO v ADEGBESAN [2000] 11 NWLR (PT 698) 611; ROMAINE v ROMAINE [1992] 4 NWLR (PT 698) 611.” PER PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJA KUDI WAHAB FEYISITAN
2. FATAI SANUSI
(Substituted by the Order of Court dated 23rd September, 2003 for themselves and on behalf of Alhaji Imam Wahab Feyisitan (deceased) – Appellant(s)
AND
1. ALFA RASAK ONISEMO
(Substituted by order of Court dated June, 2005 for late Chief Abdul Fatai Onisemo Chieftaincy family)
2. REGISTRAR OF TITLE, LAGOS STATE – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
This appeal flows from the decision of the Lagos State High Court coram CANDIDE-JOHNSON, J., delivered on 16th January, 2006. The 1st Respondent/claimant at the lower Court claimed as follows:
1.) A Declaration that the Onisemo Chieftaincy family is the owner under Yoruba Native law and Custom or entitled to the customary Right of Occupancy of the property situate lying and being at 15 John street, Lagos and registered under Titles No. LO2603 in the register of titles kept at the Lands Registry in the office at Lagos now at Alausa, Lagos State.
(ii.) An order to rectify the Register in the said land Registry by deleting there from the name of Alhaji Imam A. Wahab Feyisitan (the 1st and 2nd Defendants’ late father) as the Freehold Proprietor of the land registered under Title No.LO2603 and substitution thereto the name of the Onisemo Chieftaincy Family of Lagos.
(iii.) An injunction restraining the defendants, their servants, agents or privies from interfering with the Onisemo Chieftaincy family customary right of occupancy and right of enjoyment over the said property.
(iv.) Possession of the said property situate at No. 15 John Street, Lagos. Annual Rental Value N2,000.00.
(2.) On the 29th day of April 2002 the case went to Court where pleadings were ordered.
(3.) Pleadings having been completed the case proceeded to trial on the 16th day of January, 2006. Judgment was entered in favour of the plaintiff against the Defendant.
(4.) The Defendant dissatisfied with the said Judgment filed Notice and Grounds of Appeal on the 1st day of March, 2006.
(5.) Copy of the Notice of Appeal having been served on the parties affected and Appeal Records were settled on the 25th day of April, 2006.
(6.) All conditions of Appeal having been perfected, records of Appeal with the Original case file were transmitted to the Appeal Court.
The case leading to this appeal is in respect of the ownership of the property situate at No 15 John Street, Lagos wherein the lower Court entered judgment for the 1st Respondent and granted all the reliefs sought. Appellants/defendants dissatisfied filed a Notice of Appeal on 21st February, 2006 based on four grounds.
Appellants brief of argument was filed 16th September, 2009 but deemed filed 16th February, 2010. It was settled by M.O.J. Akande of M.O.J. AKANDE & CO. Five issues were formulated for determination thus:
1. Whether the trial Court was not wrong when it held that the suit cannot be said to be caught by Section 16(2) of the Limitation Law of Lagos State. By which the claimants lost their right to enforce their cause of action after the expiration of twelve (12) years?
2. If the answers to the above is yes then, whether the Court ought to have dismissed the claimant/Respondents claims.
3. Whether the trial Court was not wrong in refusing the plea of resjudicata put forward by the 1st and 2nd defendants.
4. Whether the judgment is not against weight of evidence.
5. Whether the Court was right in accepting that the claimant has authority to institute the action despite the challenge by the 1st and 2nd defendants.
The Respondents did not file any brief despite the fact that hearing notice was served on them neither were they represented by counsel. On the date for hearing of the appeal there was no legal representation in Court for both parties hence the briefs were deemed argued by virtue of the Court of Appeal Rules, 2016 in Order 19 Rule 10(4) and judgment was reserved. Hence the appeal shall be heard on the Appellants brief alone. The import of this was stated in ECHERE & ORS v EZIRIKE & ORS (2006) ALL FWLR (PT 323) 1597 at 1608 paras A-B per OGBUAGU, JSC thus:
It is to be borne in mind and this is also settled that, failure of a Respondent to file a Respondents brief, is immaterial and of no moment. This is because, an appellant, may succeed or fail in his own brief. In other words, that an appellant, succeeds on the strength of his own case, it is not automatic that when once a Respondent fails to file his brief, that is it the appellant automatically, must win or succeed in the appeal. No. But there is a rider or call it big BUT. The consequence of such failure is that the Respondent will be deemed to have admitted the truth of everything stated in the appellants brief.
It is pertinent to state that the Appellants settled five issues for determination in this appeal but in his brief he procured arguments only in support of four issues therefore the fifth issue is without any argument and stands struck out. The resolution shall be on issues 1-4 for which arguments were canvassed.
ISSUES 1& 2
Appellants counsel submitted that Section 16 (2) of the Limitation Law of Lagos State is clear and unambiguous that, the claimant loses its right to enforce its right of action after twelve years. He referred to the case of relied on ODUBEKO v FOWLER [1993] NWLR (PT 398) 637. Counsel submitted that the action is therefore statute barred.
He submitted that the Appellants had pleaded and testified that the cause of action arose sometime in 1971 when Alhaji Imam Wahab Feyisitan came on the land and that also after the judgment in suit LD/759/73 was delivered, the Respondents did nothing. Counsel contended further that even in 1982 when the Supreme Court dismissed the earlier suit, the Respondents also did nothing and in 1988 when the Appellants rebuilt the property, the Respondents still did not do anything until 2001 when this present action was filed. Appellants counsel submitted that the lower Court erred when it held that the evidence of PW1 saved the day to the extent that between 1988 and 2001 they took steps against the 1st and 2nd defendants inclusive of suit LD/1050/88 which was struck out on 8/3/99 when there was no pleadings or evidence that the suit was struck out. Counsel submitted that the piece of evidence was abandoned by the Respondents in their pleadings.
Learned counsel posit that the lower Court failed to properly determine from the evidence on ground that the suit was caught by the limitation law and that issue 2 should be answered in the positive.
RESOLUTION
The second amended statement of claim which was dated and filed on 08/6/2005 in respect of this action was prosecuted in a representative capacity for and on behalf of the Onisemo chieftaincy family of Lagos State as testified by PW1 the secretary of the Onisemo chieftaincy family and paragraphs 12, 13 24 of the statement of claim captures the claim of the Respondents in the lower Court at page of 301- 309 the records. I shall reproduce same for clarity purpose:
2ND AMENDED STATEMENT OF CLAIM
12. The Plaintiff further avers that Aminulai died intestate in Lagos without issue on or about 10th January, 1971 and on his death the land in dispute should revert to the original grantor, the Onisemo Chieftaincy Family under native law and custom.
13. The Plaintiff also states that one Alhaji Imam Wahab Feyisitan now deceased, the father of the 1st defendant by an affidavit dated 6th December, 1971 purporting to be a maternal first cousin of the said Aminulai or Aminulai Lawal Osoba and under a purported gift of the land in dispute to him got himself registered as proprietor of the land in dispute.
14. The Plaintiff will contend at the trial that the purported registration of the father of the 1st defendant is void and of no effect as no interest in the land in dispute passed to him as alleged or at all.
15. The Plaintiff states that the Onisemo Chieftaincy Family had both verbally and in writing culminating in letters dated 19th April, 1983 and 20th October, 1986 warned the said Alhaji Imam Wahab Feyisitan against unlawful dealing with the land in dispute and which warnings were ignored.
16. The Plaintiff states further that when the 1st defendants father refused to heed the warnings it was decided at a meeting of the Management Committee of the Onisemo Family held at Iga Onisemo at 127/129, Enu-Owa Street, Lagos on 20th November, 1986 that the family should institute an action against the 1st defendants father in Suit No. LD/1769/86: Alhaji L.B. Fagbayi & Alhaji Y.A. Eko Vs. Alhaji Imam A. Wahab Feyisitan.
17. The Plaintiff further states that it was later discovered that the said defendant in Suit No. LD 1769/86 i.e. Alhaji Imam A. Wahab Feyisitan and father of 1st defendant herein was dead at the time the action was instituted against him and consequently a Notice of Discontinuance had to be filed in respect of the said suit and the action accordingly withdrawn.
18. The plaintiff states that when Onisemo Chieftaincy Family discovered in May 1988 that one Alhaji Muda Wahab Feyisitan the late brother to the 1st defendant herein, engaged Alhaji Rasaki Baruwa a developer to develop the property in dispute, the Family strongly objected to the transaction.
19. The Plaintiff states that despite Onisemo Chieftaincy Familys objection, the building construction continued, hence an action was instituted in Suit No. LD. 1050/88 between Alhaji Y. A. Eko (On behalf of ONISEMO Chieftaincy Family) AND Alhaji Imam A. Wahab Feyisitan (one behalf of the family of Alhaji Imam A. Wahab Feyisitan Deceased
20. The Plaintiff further avers that unsuccessful efforts were made to settle the said Suit LD. 1050/88, which was eventually struck out due to absence of the parties in Court.
21. The Plaintiff further avers that when there was no positive move by the 1st defendants family and they continued to unlawfully occupy the said property, the Onisemo Chieftaincy family instructed Mr. R. O. Dawodu of Counsel to write a letter of protest to Alhaja Kudi Wahab Feyisitan and Alhaja Seri Wahab Feyisitan and same of 2nd October 2001 shall be relied upon at the trial of this action.
22. The Plaintiff avers that subsequent to his Counsel letter of 25th October 2001 addressed to the 3rd defendant, the Onisemo Chieftaincy Family at the family meeting of 2nd December 2001 agreed to institute this action in a representative capacity by Chief Abdul Fatai Onisemo against Alhaja Kudi Wahab Feyisitan and Alhaja Seri Wahab Feyisitan for themselves and on behalf of the family of Alhaji Imam Wahab Feyisitan (Deceased )
22a. The Plaintiff avers that this case was eventually heard on its merit and judgment was delivered by this Honourable Court on the 7th day of October 2002 in favour of the Plaintiff.
22b. The Plaintiff further avers that Mr. M.O. Akande of Counsel brought an application dated 7th October 2002 for an Order setting aside the aforesaid judgment given in favour of the Plaintiff in absence of the Defendants at the trial. The judgment was accordingly set aside on 11th December 2002 for the case to be re-tried de-novo.
22c. The Plaintiff avers that the 1st Defendant is now limited to Alhaja Kudi Wahab Feyisitan based on a purported Death Certificate dated 5th March 2002 of the death of Alhaja Seri Wahab Feyisitan filed in this Suit by M.O. Akande of Counsel.
23. The Plaintiff will reply at the trial on issue of estoppels based on the following findings of fact in the judgment delivered at the Land Registry Lagos in respect of the land in dispute under Title No. LO2603 after the hearing of the objection between Chief Tawaliu Adisa Bello AND Alhaji Imam Abudu Wahab Feyisitan and others regarding the registration of cautions.
i. It is also not disputed that Aminu Osoba died tenure of the land in dispute as stated by the 1st cautioner ….. I therefore prefer and accept the evidence of the first cautioner that the radical title to the disputed land Osoba was an Arota (there is no evidence of his status to the contrary) to whom the land in dispute was given the ancestor of the first cautioner to live on.
24. The Plaintiff will contend at the trial that the 1st defendant and her predecessors in-title are bound by the above definite findings of fact pleaded in paragraph 20 hereof.
The Appellants filed its defense on 14/5/04 and paragraph 3 – 23 is hereunder reproduced:
AMENDED STATEMENT OF DEFENCE OF THE 1ST TO 3RD DEFENDANTS
3. The 1st to 3rd Defendants aver that Alhaji Imam Wahab Feyisitan (Deceased) was the re-registered proprietor of the landed property known as No. 15, John Street, Lagos and registered under Title No. LO 2603 at the lands Registry Office, Lagos. The Defendants shall rely on Certified True Copy of the proprietorship Register in respect of Title No. LO 2603.
4. The 1st to 3rd Defendants aver that the said Alhaji Imam Wahab Feyisitan (Deceased) is a maternal first cousin of the Late Aminulai Lawal Osoba (Deceased) who was the first registered proprietor of the property known as 15, John Street, Lagos registered under Title No. LO 2603.
5. The 1st to 3rd Defendants aver that before the Late Aminulai Osoba died he gave the Title Deed of 15, John Street, Lagos to the Late Alhaji Imam Wahab Feyisitan with the words I gave this my only real property to you absolutely.
6. The 1st to 3rd Defendants aver that the said Aminulai Osoba died without issue and the Plaintiffs are not in any way related to the said Aminulai Osoba.
7. That the said late Alhaji Imam Wahab Feyisitan took possession of the property at 15, John Street, Lagos since 1971 and has since been in exclusive possession of same through his family up till today.
8. The 1st to 3rd Defendants aver that they are not in a position to admit or deny paragraphs 15-17 of the Statement of Claim but aver that the property known as No. 15, John Street, Lagos had once been a subject of litigation in Suit No. LD/759/73 between ALHAJI MURITALA AROMOSHODUN (for himself and the other members of the Aromoshodun family of Lagos) AND (i) Imam Abdul Wahab Feyisitan (ii) Chief Tawaliu Bello (the Onisemo of Lagos) wherein the predecessor of the Plaintiff in this case was the 2nd Defendant and a Counter-Copy of the proceedings and judgment in that suit.
9. The 1st to 3rd Defendants further aver that the said Suit No. LD/759/73 between Alhaji Murtala Aromoshodun Vs Imam Abudu Wahab Feyisitan & Anor went on appeal in Appeal NO: FCA/L/209/77 which said appeal was dismissed by the Federal Court of Appeal on the 29th day of May, 1979. The Defendants shall rely on record of Appeal and the judgment of the Court in that Appeal.
10. The 1st to 3rd Defendants also aver that there was a further Appeal to the Supreme Court in Suit No: SC/67/1981 between Alhaji M. Aromoshodun and Alhaji A. W. Feyisitan & Anor which said appeal was also dismissed by the Supreme Court on the 19th April 1982. The Defendants shall rely on the Certified True Copy of the Rulings of the Supreme Court.
11. The evidence given by the predecessor of the Plaintiff in Suit No: LD/759/73 is substantially the same as the averments contained in the Statement of Claim filed herein, the Plaintiff is estopped from re-opening the same issue in respect of the same subject matter between the same parties as the matter is Res judicata.
12. The Defendant will also contend at the trial that a claim in the year 2001 in relating to the said land at No. 15, John Street, Lagos for an act which took place in 1971 and for which the Plaintiff were also in Court in 1986 and 1988 is statute barred and cannot be maintained against Defendants.
13. The Plaintiff having been aware of their rights joined in Suit No. LD/759/73 and filed a Counter-Claim dated 20th day of March, 1975 which was struck out by the Courts judgment of 21st May 1975 and having also been aware of the Defendants possession of the land since 1971 and 1975 failed to take any action and is guilty of laches, acquiescence and standing by to have allowed the Defendants to continue with the re-building of the property in 1988.
14. The Defendants contend that the said property has ceased to form part of the Onisemo Chieftaincy Family lands about the middle part of the 19th century when then reigning Chief Onisemo of Lagos gave the said property absolutely to Madam Moriamo Mamase or Iyase who retained possession thereof throughout her life time.
15. Madam Mamase on the strength of the absolute grant to her by the Onisemo Chieftaincy Family obtained a Crown Grant in her own name in respect of the same property in the year 1871 and registered as No. 145 at Page 245 in Volume 7 of the Register of Deeds at the Lagos Lands Registry and bearing date the 1st November, 1871.
16. The said Madam Moriamo Mamase who was also known as and called Iyase or Mamase and who died childless gave the said property to her brother Lawani Osoba before she died in the year 1918.
17. The said Lawani Osoba took immediate possession of the land and shortly thereafter erected a building.
18. The said Lawani Osoba died many years ago leaving him surviving Aminulai Lawal Osoba (alias Aminulai Lawani Osoba) and Tijani Lawal Osoba as his only children.
19. The said Tijani Lawal Osoba subsequently died intestate and without issue and unmarried.
20. The said property became vested on Aminulai Lawal Osoba who got same titled in his name under Title No. LO 2063 in or about the year 1954.
21. The said Aminulai Lawal Osoba thereafter at Agboyui Village on 10th January, 1971 died intestate and without issue.
22. The said Alhaji Wahab Feyisitan having taken effective, active and exclusive possession of the said property proceeded in December 1971 to apply for transfer of the Title No. LO 2063 to him.
23. The said Alhaji Imam Abdul Wahab Feyisitan died intestate on 20th November, 1977, and was survived by five children namely (1) Alhaji Imam Mudashiru Feyisitan (2) Mr. Bashiru Feyisitan (3) Mr. Nasiru Feyisitan (4) Alhaja Kudiratu Feyisitan (5) Alhaja Sherifat Feyisitan from three wives and Mr. Fatai Sanusi and Alhaji Muyideen Feyisitan are grandchildren of Alhaji Imam Wahab Feyisitan.
The Appellant has raised the issue of limitation of action by virtue of Section 16(2) Limitation Law of Lagos State which provides that:
The following provisions shall apply to an action by a person to recover land: (a) subject to paragraph (b) of this sub-section no action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.
See ZANEN VERSTOEP & COMPANY NIG LTD v FOUR STAR IND LTD (2016) LPELR 41258 (CA).
In MR POPOOLA ELABANJO & ANOR v CHIEF (MRS) GANIAT DAWODU (2006) LPELR-1106 (SC) MOHAMMED, JSC at pages 25-26, paras D-A held that:
On a careful reading of the provisions of the Lagos State Limitation Law reproduced above, it becomes quite clear that the provision do not merely deny the right of action in Section 16 thereof but completely extinguish an existing right or title and at the expiration of the period of limitation of twenty years for state and twelve years for other parities from date of accrual of right of action. See AJIBONA v KOLAWOLE [1996] 10 NWLR (PT 476) 22; AKIBU v AZEEZ [2003] 5 NWLR (PT 814) 643; IKOSI INDUSTRIES LTD v LAGOS STATE GOVT & ORS (2017) LPELR -41867 (CA).
The Respondents averred in paragraph 20 of the amended claim that, they filed an action in respect of this matter which was struck out and again commenced this suit in 2003. Clearly the matter arose or was revived in 1988 and by the year 2000 it was 12years. I shall return to this issue.
Secondly in paragraphs 9-10 of the statement of defense wherein the Appellants referred to a case between them in LD/759/71 between ALHAJI MURTALA AROMASHODUN v IMAM ABUDU WAHAB FEYISITAN & ANOR in FCA/L/209/77 and the further appeal in SC/67/1981 between same parties which was eventually struck out by Supreme Court on 19/4/1982 and the evidence in the suit is the same adduced in this suit therefore Appellants claims they are estopped based on the principle of resjudicata.
In answer to these two jurisdictional issues I find that from paragraphs 5 -14 of the amended claim, the Respondents rely on customary title in the land and gave historical customary evidence in respect of the land. PW1 & 2 traced the history of the land from inception and that it belongs to Onisemo family who had not for once abandoned it but gave it out to the OSOBA the husband of MAMASE OR IYASE who both died at different times leaving two children: Salami and Lawani. Salami died without an heir, while Lawani had one child; Aminulai who registered his name at the land registry.
The said Osoba was an AROTA, who by native law and custom is a slave of the Onisemo Chieftancy family and cannot become a chief but can use the land without let or hindrance but once he has no heir, the property would revert to the Onisemo family. Instead of the land being returned to the Onisemo, the maternal family member of MAMASE and of Aminulai (who also died without an heir) one Alhaji Imam Feyisitan took over the land and his children and registered his name in the lands registry, this led to the then head of Onisemo Chief Tawaliu Adisa Bello filing a caution which cumulated in a registry judgment in favour of Onisemo chieftancy family tendered as Exhibit 2.
The Appellants testimony started from the premise that Mamase who had a crown grant had 2 children; Tijani Lawal Osoba and Aminulai. DW2 knew no family history except that Alhaji Feyisitan registered his name at the lands registry. More importantly is the result of the registry caution and judgment in favour of the then Onisemo of Lagos in exhibit 1, 2 and exhibit 3; exhibit 1 is the entry in the registry of lands showing Alhaji Feyisitans name, while Exhibit 2 is the certified true copy of the registry judgment of 1/6/73, Exhibit 3 is the appeal in respect of the registry judgment 21/10/74 which was struck out. The crust of the registry judgment is thus:
It is also not disputed that Aminu Osoba died tenure of the land in dispute as stated by the 1st cautionerI therefore prefer and accept the evidence of the first cautioner that the radical title to the disputed land Osoba was an Arota (there is no evidence of his status to the contrary) to whom the land in dispute was given the ancestor of the first cautioner to live on.
This was also the evidence of PW1 (the Onikoyi of Obalende) a white cap chief who reiterated the history of the land tracing it to the different caste system in Lagos State; the full-fledged blood members of the house, the Alagbagbe or Asaforijis. The third are Arotas who in the old days were slaves. Lands were given to them since they are part of the family (as slaves) and if an Arota dies without an heir the land reverts to the owner thus was the unchallenged evidence of the Respondent as custom of Lagos State.
PW1 had no impute to this nor did any of the Appellants witnesses challenge this assertion. In fact the lower Court at page 327 of the record held:
I already have no difficulty on this analysis, to find and hold that the evidence of the Onikoyi of Ikoyi, Obalende and Idumota as PW1 is unassailable from any angle? I therefore hold PW1s oral evidence to be credible and sufficient in proof of Yoruba Native Law And Custom in Lagos State on the parts covered by the Testimony of PW2 as reproduced earlier by me regarding the 3 classes within the Onisemos Chieftaincy/Family House and their transient limited rights or tenure of Arotas in relation to chieftaincy family land.
I cannot agree less; this was traditional evidence in proof of title of land. Therefore the land in dispute is covered by Lagos State native law and custom. Section 68 of the Limitation Law of Lagos State specifies that the limitation law does not apply to any land subject to customary law. In MRS GLADYS ABIADE MAJEKODUNMI & ORS v MUTIU ABINA (2002) LPELR 1826 (SC) the apex Court per UWAIFO, JSC at page 17, para C held that the Limitation Law of Lagos State does not apply to land which is subject to customary law.
Therefore, it is clear that this land in question cannot be caught by the twelve years stipulated in the limitation law of Lagos State. Hence it is inapplicable to the land in question.
I therefore resolve issue 1 against the Appellants.
ISSUE 3
Appellants counsel submitted that the Respondents were privy to the previous judgment as it was the predecessor Chief Tawaliu Bello Onisemo who was in that suit and that the Appellants likewise were also privies through Alhaji Imam Wahab Feyisitan and that the subject matter and issues involved are the same.
Learned counsel submitted that the matter is therefore affected by the doctrine of Res judicata. He referred to Section 54 of the Evidence Act; SUNDAY NJOKU & ORS v JACOB DIKIBO & ORS [1998] NWLR (PT 534) 496 and submitted that a party is barred by existing judgment from re-litigating the same case. He submitted that the lower Court was wrong by holding that the plea of res judicata is not sustainable and that in the same case, the Court accepted exhibits 2 & 3 as constituting estoppel by record.
RESOLUTION
Following closely is the issue of estoppel. From Exhibit B, record of proceedings of the Court of Appeal filed at the lower Court, the Respondents representative got judgment at the lands registry and same was upheld at the appeal Court in exhibit 2 & 3. In 1986, Respondents filed LD/1769/86 against Alhaji Feyisitan in exhibit 4a & b but discontinued upon the death of Respondent. Exhibit 5 is a letter of demand by the Respondents Solicitor served by the PW1 secretary of the Respondents family. This evidence remained unchallenged under cross examination.
I find that the Respondents consistently pursued their claims and never abandoned their rights contrary to the Appellants assertion. At the lands registry were two cautioners testified, one Hamid Raji Abisawo Ottun testified that after Aminu Osoba died, Alhaji Feyisitan told the family meeting of how he saw and obtained Aminu’s land certificate and he refused for the land to be sold and proceeds shared amongst father and mother side of Aminulai. The 2nd cautioners testimony agreed with these and that he was related to the Aminu Osoba on mothers side.
The registry judge considered the effect of the crown title of Mamase and held that same is subject to the customary law of the land he relied on OSHODI v DAKOLO & ORS 9 NLR 13 at 25.
At the time the appeal was struck out, the position of the exhibit 2 was binding and was the situation on the title and therefore constitutes estoppel against the Appellants and the Respondents, they cannot contend the facts outside what has been settled. Therefore in this case, I am of the firm view that it constitutes estoppel against the Appellant that the land had a versionary title as at the time of death of Aminu Osoba and there is no tie paternally nor maternally to the land by the said Alhaji Feyisitan and thereby his heirs and personal representatives. They are bound by exhibit 2 & 3.
The effect of the averments in paragraphs 21 & 22 of statement of Defence of the Appellant:
21. The said Aminu Lawal Osoba thereafter at Agboyui Village on 10th January, 1971 died intestate and without issue.
22. The said Alhaji Wahab Feyisitan having taken effective, active and exclusive possession of the said property proceeded in December 1971 to apply for transfer of the Title No. LO 2063 to him.
As the above has no bases in the light of the original title of the land, possession cannot stand.
In exhibit b tendered by Appellant, the judgment of ODESANYA, J in LD/759/73, the Court at page 47 lines 2, 29-32 made findings on the affidavit of Alhaji Feyisitan which content is the same upon which the Appellants stand that:
Alhaji Feyisitan managed to get himself wrongly registered as the owner of the property in dispute
Till date the Appellant have not appealed this finding.
Estoppel as rule of substantive evidence is a shield and not a sword.
Finally on the claim of Res judicata, the Respondents filed a reply to the further defence of the Appellants and averred that it was only the Respondents case that was dismissed while the 2nd Appellants counterclaim was struck out in suit No: LD/759/73 and that it does not create res judicata between the Respondents and the Appellants. It was the counter claim of Alhaji Tawaliu Bello then Onisemo of Lagos in that AROMOSHODUN’S case wherein he was joined that was struck out. Having not been heard on its merit the plea of res judicata cannot operate. Therefore on this premise I also find that the Court was right in refusing the plea of res judicata put forward by Appellants.
I resolve this issue against Appellants.
ISSUE 4
The Appellants counsel submitted that the Court erroneously placed so much weight on exhibit 2 & 3 without considering the effect of the crown grant exhibit A in favour of Mamase on those exhibits. He contended that the crown grant in favour of Mamase has extinguished the rights of the Respondents in respect of the property in dispute and that the judgment has not supported the weight of evidence before the Court.
RESOLUTION
The first port of call is the force and effect of a crown grant holder in law and in the light of circumstances of this case as highlighted in the earlier issues analysed in this judgment.
The true position in law on the effect of a crown grant has been clearly demonstrated in IDOWU WASAW v CHIEF SAKAIYAWO OSHODI 11 NLR 10 at 11 that the crown grant were only grants in trust and that they left the interest in the properties whether of occupiers or of the chief exactly where they had been, to wit firmly within the bounds of customary law. See TIJANI JOLASUN v NAPOLEON BAMGBOYE (2010) LPELR 1624 (SC) where the apex Court held concerning the effect of a crown grant as follows:
Generally speaking, where an applicant is relying on an instrument of grant like a conveyance, mere production of a valid instrument does not necessarily carry with it an automatic grant. THE application for a freehold interest in the property cannot succeed unless certain questions are inquired into by the Court (a) whether documents are genuine and valid (b) whether it has been duly executed stamped and registered (c) whether the grantor had the capacity and authority to make the grant (d) whether the grantor had in fact what he purported to grant (e) whether it had the effect claimed by the holder of the instrument. ENILOLOBO v ADEGBESAN [2000] 11 NWLR (PT 698) 611; ROMAINE v ROMAINE [1992] 4 NWLR (PT 698) 611.
Applying this to this appeal, it follows that since the customary law which in this case is Yoruba native law and custom did not provide for succession of a wife to her husbands property but only in succession by children of Osoba, the Arota of the Onisemo chieftaincy family were entitled to succeed to Osobas limited interest in the property.
In the Oshodi case cited above the Court held at page 25 thus:
These various occupiers have the right to remain and to transmit their holdings to their offspring but in the event of family of an occupier failing or being extinct, the chief has a right of reversion.
The condition of a crown grant applies in this appeal, whether the grant has the effect it claims to have? The answer is no, it had a reversion in the Onisemo family and could not have been given a free hold interest.
In the light of exhibits 1, 2 & 3 and B of the Appellants, it is abundantly clear that Mamase could not have been issued a crown grant and if it was, it was in trust till all her children for Salami Osoba had passed on till there exist no more heirs and thereafter to revert to customary owner the Onisemo chieftaincy family. In summary a combined reading of exhibit 2 and B is to the effect that the father of the Appellants has no business or interest in the disputed property.
In the light of the Respondents unchallenged evidence and exhibits tendered in proof and exhibit 5 which was a Solicitor’s letter of demand to the Appellants predecessors, the judgment is supported by a huge weight of evidence on record. I resolve this issue against the Appellants.
Having resolved all issues against the Appellants, the appeal lacks merit and is accordingly dismissed. The Judgment of the Lagos State High Court coram CANDIDE-JOHNSON, J., delivered on 16th January, 2006 is hereby affirmed.
TIJJANI ABUBAKAR, J.C.A.: My lord and learned brother OBASEKI-ADEJUMO J.C.A., granted me the privilege of having access before now to the leading judgment in this appeal. I am in full agreement with the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more
Appearances:
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