Clay Industries (Nigeria) Ltd. v. Adeleye Aina & Ors. (1997)



Clay Industries (Nigeria) Ltd. v. Adeleye Aina & Ors. (1997) – SC

by PipAr Chima


A party watching another litigate an issue without interfering will constitute estoppel by conduct against that party subsequently, that he would not be able to deny whatever that other party reaps.


Land Law

⦿ TAG(S)

Estoppel by conduct.
Lis pendens.


Clay Industries (Nigeria) Ltd.


Adeleye Aina & Ors.


(1997) JELR 45452 (SC)


Supreme Court


A. I. Iguh, J.S.C



– Mr. Ayanniyi.


– Chief G.O.K Ajayi, SAN.


The case for the plaintiffs as pleaded before the trial court is that all four of them are partners doing business under the name and style of Idland Contract and Supply Company. This business name was duly registered in 1962 under the Registration of Business Names Act, 1961. The land in dispute situate at Oregun village, Ikeja in Lagos State was bought by them from the original owners, the Ajose family in 1963. This is evidenced by the Deed of Conveyance, Exhibit P2, dated the 31st October, 1963. They went into possession of the land immediately thereafter. They also engaged labourers and caretakers who cultivated the land and claimed it to be his own. He brought a quasi-criminal action, Exhibit P3, against the 3rd plaintiff in respect of the land which action was dismissed by the lkeja Chief Magistrate’s Court. This was on the ground of want of jurisdiction as the issue of title to land was therein raised in the proceedings. They claimed that Chief T.A. Doherty wrongfully sold part of the said land to Cappa and Dalberto Ltd. on the 1st day of August 1967 as per the registered conveyance, Exhibit P4. Cappa and Dalberto Ltd. in turn resold the land to the defendant on the 22nd day of September, 1967 as per the conveyance, Exhibit P5. They claimed that the defendant trespassed on the land and laid claim thereto, hence this action.

Akanbi Ajose, one of the descendants of the original owner of the land testified for the plaintiffs at the hearing. He admitted under cross-examination that it was a portion of the land sold to Doherty that was later resold to one Bisiriyu Akintola by some members of his faction of the Ajose family.

On the other hand, the case of the defendant, as pleaded, is that it lawfully entered and is in lawful possession of the land in dispute. This is by virtue of Exhibit P4 whereby the land was sold by the late Chief T.A.Doherty to Cappa and Dalberto Ltd. By Exhibit P5, Cappa and Dalberto in turn resold the land to the defendant in 1967. It stressed that Chief T.A. Doherty had by himself and his agents been in undisturbed continuous possession of the land in dispute, having bought a more extensive piece or parcel of land within which situate the land in dispute from the Ajose family. They explained that the said Ajose family owned a much larger area of farmland including the land in dispute under native law and custom through one Taiwo Ijon, their great grand father who died many years ago. He was survived by several children. One of them, Kusemi, was the father of Ajose whose children were known as the Ajose family. It was the said Ajose family who made an absolute out and out sale of a large tract of their family land, including the land in dispute, to the late Chief T.A.Doherty.
The defendant further averred that title of the late T.A.Doheny to the land sold to him and including the land in dispute by the Ajose family was confirmed by the then High Court of Western Nigeria, holden at lkeja, in suit No. HK/14/62, Exhibit D1 between Bisiriyu Akintola as plaintiff and Clay Industry (Nigeria) Ltd. and T.A. Doheny as defendants. This High Court judgment in Exhibit DI was affirmed by this court in Exhibit D3. The defendant claims that it has been in possession of the said land in dispute without any interference from anyone whatever.

Available:  Augustine Ndulue v. Nwankwo Ibezim & Anor (2002)

At the conclusion of hearing the learned trial Judge, Ajose-Adeogun J, after a careful evaluation of the evidence on the 31st October, 1977 found for the defendant and dismissed the plaintiffs’ claims. He noted that both parties to the dispute claimed to have derived their respective root of title from the same radical owners, namely, the Ajose family. He considered both claims by the parties and came to the conclusion that the title of the defendants was better and preferable than that of the plaintiffs.

Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Lagos Division, which in a unanimous decision on the 25th day of January, 1989 allowed the appeal, set aside the judgment of the trial court and found for the plaintiffs.

Aggrieved by this decision of the Court of Appeal the defendants have now appealed to this court. I shall hereinafter refer to the plaintiffs and the defendant in this judgment as the respondents and the appellant respectively.


The plaintiffs who were partners, trading under the name and style of Idland Contract and Supply Company, had on the 17th day of September, 1970 instituted an action against the defendant claiming as follows-

(a) A declaration of Title to all that piece or parcel of land situate, lying and being at Oregun Road, Morekete Village, Ikeja Division of Lagos State of Nigeria;

(b) Injunction restraining the defendant their servants and/or agents against further acts of trespass on the said land and

(c) Two Hundred Pound (‘a3200) damages for the said acts of trespass.


1. Whether the plaintiffs were estopped by the decision in Exhibit D1 from maintaining this action against the defendant.

2. Whether, having regard to the (fact that both parties rely on a common root of title,) the plaintiffs have discharged the burden of proving a better title to the land in dispute.

3. Whether the doctrine of Lis Pendens applied to defeat the title of the plaintiffs in this case.

4. Whether the defendant was entitled to judgment on the basis of the Limitation Decree, long and adverse possession.




i. In the present case, there is evidence that the land in dispute was held by the Ajose family under native law and custom. Both sections of the said Ajose family together made an out and out sale of the land under native law and custom to Chief Doherty who paid the full purchase price. Possession of the land was duly delivered to him in accordance with customary law and he immediately went into possession thereof. The sale under native law and custom to Chief Doherty was admittedly much earlier in time than the purported conveyance to the respondents. I agree entirely that whether under English law or under native law and custom, Chief T.A Doherty who was vested with legal estate in the land as soon as he bought it and went into possession thereof acquired a better title to the land in dispute than the respondents. So, too, the appellant who is Chief Doherty’s successor in title to the property similarly acquired a better title than the respondents.

Available:  Clement Oguonzee v The State (1998) - SC

ii. To conclude, on issues 1 and 2, I think the Court of Appeal, with respect, was in error to have held that no estoppel arises in this case. There is, in my view, a clear estoppel established on the facts of this case whereby the Akanbi Ajose branch of the Ajose family, the predecessors in title of the respondents, are estopped from relitigating the question of title to the land in dispute against the appellant which was the first defendant in Exhibits D1, D3 and successor in title of the late Chief T.A Doherty to whom valid title of the land in dispute was lawfully vested in by both sections of the Ajose family before the purported conveyance to Akintola or the respondents by the Akanbi Ajose section of the Ajose family which only comprised a fraction of the said Ajose family. I am in no doubt that the Court of Appeal, with due respect, fell into a serious error when it held that the respondents established a better title to the land in dispute than the appellants. The land in dispute having been validly sold to Chief Doherty, the predecessor in title, and, through whom the appellant claimed title, the subsequent or latter purported conveyance of the same land by only the Akanbi Ajose section of the Ajose family to the respondents was nothing but nudum pactum and of no effect. The court below was therefore in error when it held that the conveyance, Exhibit P2 passed a legal estate of the land in dispute to the respondents. It did not so pass, as nemo dat quod non habet; the Akanbi Ajose section of the Ajose family not being the exclusive owners of the land were not in a position to convey the same to the respondents.


i. It ought to be observed that the observation of the court below thereupon was purely by way of obiter dictum as the point was not an issue in the case between the parties. Lis pendens was neither pleaded as a ground for the defeat of the respondents’ case before the trial court nor was its judgment based thereon. In my view, it is now too late in the day for the appellant to raise this new defence which did not form the basis of his case before the trial court.

ii. At all events, the doctrine of lis pendes affects a purchaser, who buys property, the subject matter of litigation during the pendency of such litigation because the law does not allow parties to a suit, pending the litigation, rights to real property in dispute, so as to prejudice the opposite parry on the principle, pendente lite nihil innovetur. See Barclays Banks of Nigeria Ltd. v. Alhaji Ashiru and others (1978) 6 and 7 SC. 99 at 123, 124-125, 128 and 129. The property in dispute in the suit under appeal was at no time sold to the respondents during the pendency of the relevant suit by Bisiriyu Akintola, Chief T.A. Doherty or the appellant, the parties to Exhibits D1 and D3. In the circumstance I agree entirely that the doctrine of lis pendens is inapplicable in the present case.

Available:  Chief Peter Amadi Nwankwo & Anor v. Ecumenical Development Co-operative Society (EDCS) U.A (2007)

4. ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT. The Court stated: “I need only state that the appellant failed to make out a defence based thereunder.”




Ayinla v. Sijuwola (1984) 5 SC 44 at 77 where Nnamani JSC explained the principle in issue as follows- “All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overriden by a legal estate. This principle accords with the decisions of the Privy Council in Oshodi v. Balogun and Ors 4 WACA 1 at p.6 and Suleiman and Anor v. Johnson 13 WACA 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate.”




It cannot be over-empahsised that the object of the formulation of issues for determination in an appeal is to enable the parties narrow the issues arising from the grounds of appeal filed in the interest of clarity, brevity and accuracy, thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal. – Iguh, JSC. Clay v. Aina (1997)

Courts of law must, as a rule, limit themselves to the issues raised by the parties in their pleadings as to act otherwise might well result in the denial to one or the other of the parties of his constitutional right to fair hearing. – Iguh, JSC. Clay v. Aina (1997)


In land cases that the plaintiff when claiming a declaration of title must succeed on the strength of his case. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. The plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case may not generally help him and the proper judgment will be for the defendant. Where, however, the case of the defendant lends support to the case of the plaintiff, it is recognised that the court cannot ignore it in arriving at a conclusion as to which side to believe. – Iguh, JSC. Clay v. Aina (1997)

Besides, a declaratory claim, as in the present case, is a discretionary remedy which shall be refused where the plaintiff fails to establish his alleged entitlement to the satisfaction of the court. – Iguh, JSC. Clay v. Aina (1997)

Where any person having an interest may make himself a party to a suit by intervening and knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case. – Iguh, JSC. Clay v. Aina (1997)




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