The claim of the plaintiff in this case as stated in his writ of I summons, as amended, is that he and his family are the owners by native law and custom of the land in question. The writ further
*Page 24 states “that this land forms part of the stool land of the Oloto Chieftaincy and the Oloto Family and has not been alienated to any other party.” Pleadings were ordered and the plaintiff’s claim was further particularised by his Statement of Claim. Paragraphs 1 to 6 of the Statement of Claim set out the facts of the case for the plaintiff in the following terms :-
“1. The plaintiff states that the land in dispute which is known as 86 Cemetry Street, Ebute Metta, Lagos, Nigeria, as described in the writ of , summons but therein wrongly described as having been the subject matter , of a suit, C. and v. Williams versus The Chief Olvwa, but the abuttals and dimensions of which are particularly described in the plan filed with this Statement of Claim. has been from the time immemorial part of the stool land of the Oloto Chieftaincy and the Oloto family who have not alienated the same to any other party with the exception mentioned in the next following paragraph.
“2. Many years ago at the request of the late Governor, Sir John Hawley Glover, an area was demarcated in Ebute Metta for the people then known as the Egba refugees, but the whole area so demarcated by the plaintiff’s predecessor in title for the purpose of settling these refugees was not used for that purpose; there were certain areas which were never taken up for settling these refugees. The area in dispute was such an area and therefore the full ownership reverted to the then Chief Oloto and the Oloto family and was free of any tenancy under native law and custom.
“3. Instead of this area being alloted to the Egba refugees at the request of the said late Governor Glover the then Chief Oloto granted it for the use of some people known as Efon people who had migrated to the Ebute Metta area of Lagos for farming and other purposes.
“4. The grant was made to them on the usual and well-known terms of native law and custom.
“5. Some years later these same Efon people left this area having found other places in which to settle, giving up any rights of occupancy which they may have had according to native law and custom as aforesaid , and the full title in the land thereupon reverted to the then Chief Oloto I and the Oloto family.
“6. For many years after the departure of the Efon people as aforesaid the land remained vacant and unoccupied by anyone who had any right there as deriving any title from the Chief Oloto or the Oloto family.” The defendants by their amended Statement of Defence, which it is unnecessary to quote in full categorically denied the allegations in paragraphs 1 to 6 of the Statement of Claim and set out quite definitely their case which was that their ancestor was f in regard to the land in question a grantee, as an Egba refugee, of Governor Glover, and that he and his family, descendants and successors of the original grantee, had been in possession of the land ever since.
At the trial the defendants satisfied the learned Judge that their statement of the facts was correct and that the plaintiff’s, statement of the facts in his Statement of Claim was incorrect.
Having come to that definite conclusion of fact the learned Judge then proceeded to give” judgment for the plaintiff”, That means judgment for the plaintiff for what he claimed, and to discover what the plaintiff claimed one must, of course, look at the claim as state in the writ and Statement of Claim. Looking at the writ one finds that” judgment for the plaintiff” involves a finding that the land in question had not been alienated to any other party”. Looking at the Statement of Claim, and particularly at the last sentence of paragraph 2 of the Statement of Claim it is clear that “judgment for the plaintiff “ meant that the ownership by native law and custom “ of the plaintiff “was free of any tenancy under native law and custom”. But it is clear from the findings of the learned Judge in his judgment that he found as a fact that there had been alienation to another party, namely to Governor Glover for the Egba refugees. It is also clear that the learned Judge in his judgment found as a fact that the defendants’ ancestors and the defendants had respectively acquired and inherited” a right of occupation under native law and custom “, which is a “tenancy under native law and custom” . It follows therefore that in giving judgment for the plaintiff’ the learned Judge was in terms deciding the case before him in a way which was quite inconsistent with his express findings of fact.
Furthermore in his judgment the learned Judge held in respect of the grant to Governor Glover that no consideration of any kind was given to the Chief “, but there was no evidence before the learned Judge at the trial justifying such a finding.
It is manifest that neither party attempted to show in evidence what were the terms and conditions of the grant to Governor Glover or what precisely were the terms and conditions of Governor Glover's grants to the Egba ancestors of the defendants.
The learned trial Judge found that “the plaintiff's right of reversion remained” , and that this right of reversion was the same thing as the ownership by native law and custom claimed in the writ. We are of opinion that these findings as to the reversionary right should not have been made in this suit since the very important question of whether or not the plaintiff has such a reversionary right was not in issue on the pleadings and the defendants therefore did not necessarily put forward the full defence which might be made to such a claim if it had been definitely put in issue. We therefore set aside these findings, leaving entirely open the questions whether after the grants to Governor Glover and by him to the defendants’ ancestor any reversionary interest in the land remained in the plaintiff's family and if so what the nature and extent of such reversionary interests were and are. The case is fundamentally different from that of Oloto v. John (Suit No. 15/1942 W.A.C. 1791 decided by this Court on the 19th October, 1942 and not yet reported) because in that case the defendant was a “squatter” and not a representative of an Egba grantee of Governor Glover.
For these reasons we are of opinion that the learned Judge was wrong to give judgment for the plaintiff and that instead he should have non-suited the plaintiff’s claim. That judgment would upon the Judge’s findings of fact have been in conformity with the evidence of Ashafa Tijani, the principal member of the plaintiff's family and his representative and first witness who said: “If the Egbas had been still there we should not have tried to reclaim it “. The learned Judge has held as a fact that “the Egbas”, in the persons of the defendants are “still there”. The plaintiff has accepted that finding of fact and obviously can have no complaint that his attempt to “reclaim” the land has failed. The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside and it is ordered that in lieu thereof judgment of non-suit be entered with costs to the Defendants-Appellants and further that if any sum has been paid in pursuance of the said judgment of the Court below it shall be refunded. The appellants are awarded costs in this Court assessed at 30 guineas and in the Court below assessed at 45 guineas.