MOGAJI AND ORS. V. CADBURY NIG LTD. & ORS
| Pages | 959-997 |
MOGAJI AND ORS. V. CADBURY NIG LTD. & ORS.
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MOGAJI AND ORS. V. CADBURY NIG LTD. &
ORS.
O.K.O. MOGAJI AND ORS.
APPELLANTS
V
CADBURY NIGERIA LTD & ORS.
RESPONDENTS
SUIT NO. SC 129/1984
SUPREME COURT OF NIGERIA
BELLO,
J.S.C.
OBASEKI,
J.S.C.
NNAMANI,
J.S.C.
UWAIS,
J.S.C.
KARI B I -WHYTE,
J.S.C.
5th
July, 1985
Land Law - Claim for declaration of title to land - Root of title - Where not
in doubt - Whether inference from acts of ownership necessary - Effect of
long possession of trespasser - Whether sufficient weapon of offence under
native law and custom - Concept of ownership by prescription - Whether
known to customary law.
Evidence - Witnesses - Conflicting testimonies of - When the test in Kojo II v.
Bonsie may apply - Evidence at variance with pleadings - Effect of - Evidence
of defence supporting plaintiffs case - When plaintiff may take advantage of
- Principle in Onubogu v. State - Applicability of
Practice and Procedure - When an appellate court may allow new points of law
not raised in the courts below - Pleadings - Evidence at variance with
pleadings - Effect.
ISSUES:
1.
Whether a party to an action can depart from his pleadings.
2.
What must a claimant for declaration of title to land establish to succeed in his
claim?
3.
Under what circumstances can a plaintiff depend on any part of the defendant's
evidence to support his case?
4.
What test should a court apply in resolving conflicting traditional histories of
title to land in an action for declaration of title?
5.
Whether the concept of ownership of land by prescription is known to native
law and custom.
6.
Whether long possession can be the basis of a claim of title to land or used to
defeat the claim of the true owner of land under native law and custom.
7.
When may an appellate court entertain a point
of law not raised in the courts
below?
FACTS:
The plaintiffs brought a claim for declaration of title to land. Both the plaintiffs
and Defendants had competing titles and each side relied on original ownership
by its predecessors-in-title. The plaintiffs traditional evidence as regards their root
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NIGERIAN SUPREME COURT CASES [1985] 2 N.S.C.C.
of title was substantially self conflicting whereas the defendants' case was estab-
lished on oral evidence and previous judgments confirming ownership of sur-
rounding lands by their predecessors- in-title. The trial Judge found for the
defendants.
The plaintiffs' appeal to the Court of Appeal was dismissed whereupon the
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plaintiffs appealed to the Supreme Court raising some issues for the first time. First
that the trial Judge was wrong in not finding that the defendants were estopped by
a previous judgment and that the sale of the land in dispute to the plaintiffs' prede-
cessor-in-title was made in the vendors personal capacity and not on behalf of the
alleged original owners. The plaintiff/appellants also contended that the Court of
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Appeal was wrong in holding that the principle in
Kojo II v. Bonsie
did not apply
where the conflict in traditional evidence was between the witnesses called by the
same party. The appellants also contended that the principle in
Onubogu v. The
State
did not apply to destroy the evidential value of the testimonies of the plain-
tiffs' witnesses on the traditional history of the ownership of the land.
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HELD:
1.
That the plaintiffs/appellants' evidence is totally at variance with their pleadings
by reason of the conflicting testimonies of the witnesses. The compound-
conflicts could result in nothing less than the breakdown of the case for the
plaintiffs as set out in the pleadings. The case of defence being solid, there is
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nothing in the evidence which imports the application of the principle in
Onubogu v. The State.
The case here is one in which the conflict between one
witness and another destroyed the case pleaded.
2.
That it is the duty of the party who seeks a declaration of title to land to establish
and prove his claim by credible evidence. Having pleaded and traced the
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appellants' root of title to Aina Adeokun family, the appellants could not, with a
wave of the hand dispense with proof of that title as pleaded in relation to the
land in dispute. The origin of the long possession which the appellants argued
rather strenuously is Aina Adedokun or Dada Okin family. It is not open to the
appellants to depart from their pleadings and pitch their title in immemorial
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origin.
3.
It cannot be too often repeated that in a claim for declaration of title to land, the
plaintiff must succeed on the strength of his own case, and not on the weakness
of the defence. However, the defendants' evidence may itself support the
plaintiff's case and contain evidence on which the plaintiff is entitled to rely. In
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such a case, provided the evidence is credible and accepted by the Judge
during the assessment of the evidence adduced, the plaintiffs are entitled to the
evaluation of such evidence in their favour so as to increase the strength of their
case.
4.
That where a party adduces two competing histories of his ownership in support
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of his claim, he has failed to make out the case he set out to make and his claim
must be dismissed. It is only where the conflict arises between the traditional
history given by one side and the traditional histories given by the other side
that the test in
Kojo 11 v. Bonsie
is resorted to in the ascertainment of the true
history. The conflict in the versions of the traditional histories given by the
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witnesses called by the appellants rather than strength, has not only weakened
but destroyed the evidence of the appellants. The complaint against
non-application by the trial court and the Court of Appeal of the test in
Kojo 11
v. Bonsie
to the conflicting traditional histories given in support of the appellants'
case is therefore misconceived.
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5.
That long possession is more of a weapon of defence on equitable grounds
to defeat claims for declration of title and trespass than one of offence to
establish a claim of declaration of title and damages for trespass against the
true owner. A claim for declaration of title is not founded on ownership by
MOGAJI AND ORS. V. CADBURY NIG LTD. & ORS.
961
prescription under native law and custom and the appellants' claim for
declaration of title here is based on native law and custom. Unless the origin
of the title is valid, the length of possession does not ripen the invalid title of a
trespasser to valid ownership of title.
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6. That as to the contentions of the appellants that the courts below should have
found for them for long possession, long possession cannot found a claim for
declaration of title, damages and trespass and an injunction against the true
owner of title to land. A trespasser in possession is only entitled to sue in
trespass, persons who are not true owners of land. As against a trespasser,
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possession attaches to title of ownership. If he sues one who has a better title,
he cannot succeed. The appellants' title had been shown to be defective and
as such, their appeal must fail.
7. That the Supreme Court has discretionary power and is competent to entertain
a point of law raised for the first time before it. No point which had not been
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taken in the lower court will, however, be allowed to be raised for the first time
on appeal before the Supreme Court except in special circumstances. The
question of jurisdiction of a court of trial being so fundamental has been held
to be one of the well recognised exceptions of the rule that points raised for
the first time in an appeal court will not be entertained. New points which involve
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substantial points of law, substantive or procedural (and if it is, plain that no
further evidence could have been adduced which would affect the decision of
them) may also be allowed to be raised for the first time. The appellants in this
case were not allowed to argue new points raised for the first time in the appeal
because none of the new points fell within the fore-going rules of practice.
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[Note: The test in
Kojo 11 v. Bonsie
has its origin in the
dictum
of Lord Denning in
that part of his judgment in that case where he said
inter alia:
"Where there is a conflict of traditional history, one side or the other must
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be mistaken, yet both may be honest in their belief. In such a case, de-
meanour is little guide to the truth. The best way to test the traditional history
is by reference to the facts in recent years as established by evidence and
by seeing which of the two competing histories is more probable."
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The rationale of the rule being, again in the words of the learned Lord that "wit-
nesses of the utmost veracity may speak honestly but erroneously of what took
place a hundred years ago."]
CASES REFERRED
TO IN
JUDGMENT:
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1.
Jegede v. Bakare Gbajumo,
(1974) 10 S.C. 183
2.
Ogundairo v. Okanlawon,
1 All N.L.R. 350
3.
lbeneweka v. Egbuna,
4.
Taiwo v. Ogunsanya,
(1967) N.M.L.R. 378
5.
Pius Amankor v. Obiefuna,
(1974) 1 All N.L.R. 119
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6.
Goddy Umeobi v. Otukoya,
(1978) 4 S.C. 33
7.
Jones v. Chapman,
8.
Kponuglo v. Kodadja,
(1931) 2 W.A.C.A. 24
9.
Archibong v. Ita,
14 W.A.C.A. 520
10.Ekpo
v. Ita, 11
N.L.R. 68
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11.Idundun v. Okumagba,
(1976) 9-10 S.C. 227
12.
Thomas v. Holder,
12 W.A.C.A. 78
13.Da
Costa v. lkomi,
(1968) 1 All N.L.R. 394
14.Olukade v. Alade,
(1976) 1 All N.L.R. 67
15.Kojo v. Bonsie,
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