Phillip Oladimeji And Anor V Madam Oshode And Anor (1968)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellants who were the plaintiffs in the High Court of Lagos, suit No. LD/556/64, had sued the respondents who were the defendants claiming:-

(a) Declaration of title to the piece or parcel of land situate, lying and being at Alan Road, Surulere, Yaba in the mainland of Lagos Property of the plain-tiff.

(b) £50 Special and General Damages for trespass and waste committed and is still being committed by the defendant by herself, her servants and/or agents on the plaintiffs’ land situate, lying and being at Alan Road, Surulere, Yaba in the mainland of Lagos.

PARTICULARS OF DAMAGES:

Special Damages:

Value of Crops and Palm Trees destroyed £25

General Damages         £25

____

£50

(c) Injunction to restrain the defendant, her servants and/or agents from further continuing the said act of trespass and waste.”

The first plaintiff is the personal representative of one Jacob Oyinloye Onipede or Jacob Oyinloye (deceased) and it is claimed on behalf of the plaintiffs that the late Jacob Oyinloye Onipede and the second plaintiff are the owners of the land the Area Of Law of this action, situate at Atan Road in Surulere in the suburb of Yaba on the mainland of Lagos. It was accepted by both sides that the land was part of a very large area of land belonging originally, according to Native Law and Custom, to the Oloto Chieftaincy Family. Both parties also agreed that Circa 1902 a parcel of land comprising the land in dispute in the present proceedings was granted by one Chief Eshugbayi Oloto on behalf of the Oloto Family to one Lawani Giwa, alias Lawani Atan. Up to this point both parties are agreed as to the history of the land in dispute: what happened subsequently is the cause of the present litigation. According to the plaintiffs’ Pleadings one Salu Adisa Shitta thereafter purchased the land and later sold it to them, i.e. the plaintiffs. That was in 1947.

When however in 1955 the children of Lawani Giwa challenged their title they re-purchased from those children by virtue of a conveyance dated the 30th March, 1955. They pleaded that like their predecessors in title they had always been in undisturbed possession of the land until some time in 1965 (in effect) when the defendants disturbed their possession and claimed the land. According to the defendants, on the other hand, the aforesaid Lawani Giwa some fifty years ago made a gift of the land in dispute to one Emmanuel Aderonmu who was his servant ‘for faithful and devoted services’ (see paragraph 8 of the Statement of Defence). Thereafter Aderonmu sold it to one Samuel Edwin Cole (1931) who later mortgaged the land to the Nigerian Loan and Mortgage Co. Ltd. and on failure of Cole to redeem, the Nigerian Loan and Mortgage Co. Ltd. in exercise of their statutory powers, sold the land by public auction to one John St. Matthew Daniel, now deceased whose personal representatives in 1956 sold the land to the second defendant. The first defendant is the wife of the second defendant and she has no other interest in this land.

At the trial, the plaintiffs gave evidence of the purchase of the land from Salu Adisa Shins by Jacob Oyinloye Onipede, (deceased) and the second plaintiff and of its subsequent repurchase by them from the children of Lawrence Atan in 1955 (see conveyance exhibit “D” dated the 30th March, 1955). The defendants’ case of the gift of the land by Lawani Atan to Emmanuel Aderonmu was put to the plaintiffs’ witnesses and it became obvious from the answers elicited from them that the defendants’ story of the gift was more probable than the plaintiffs’ case either of the sale by Lawani Atan to Salu Adisa Shirts, as pleaded by them or of the retention of the land by Lawani Atan himself as postulated by the resale of the land by his children.

It is manifest that the claim to title was not made out by the plaintiffs as it should have been and the learned trial judge, rightly in our view, rejected that claim. Besides this, however, the learned trial judge, for reasons appearing in the judgment, rejected the claims of the plaintiffs for damages for trespass and in dismissing their case made the following observations:-

“The plaintiff’s claim both for declaration of title and for damages for trespass will therefore be dismissed .

The plaintiffs have appealed to this court against that decision and the gravamen of their complaint is that on the evidence before him the learned trial judge should have found that at least they were in physical possession of the land when the defendants entered and that unless the defendants shew a better title, which they did not, they should be condemned in damages for trespass. The claim for title by the plaintiffs strenuously canvassed at the trial was dropped in toto and learned counsel for the plaintiffs planted his case on possession. We were referred by him to a number of authorities to show that possession is such as the subject-matter Is capable of sustaining and also that it would in effect be sufficient in law to ground possession of a large area of the land upon physical possession of a small part of It: that if it is shown that a proprietor does in fact exercise actual physical dominion over a reasonable portion of land the law would infer therefrom that he was in possession of the larger piece of land of which that one forms a part.

The proposition is trite law but in every case it is necessary to evaluate properly the facts on which the inference of law is sought to be based. The West African Court of Appeal stated the principle as follows:-

“The learned trial Judge appears to have experienced some difficulty in identifying the particular 6 1/2 acres of land now In dispute with the total area of land covered by the appellant’s documents, but I must confess I do not share this difficulty.

Counsel for the respondents in regard to the question of possession submitted that there is no evidence of possession by the appellant of the particular area of 6 1/2 acres, an argument which the view of the learned judge appears to support where he states that although the original owner may forfeit his right to recover in respect of areas disposed of by a third party this does not necessarily mean that he would lose such right in respect of these parts which remain undisposed of. In the first place sale and attempts to sell are not the only means by which possession may be evidenced and in the second place In order to establish possession of a property of some 135 acres it is not necessary to establish that the person claiming possession has physically occupied and exercised acts of ownership in respect of every acre of it. In my opinion the evidence that the appellant’s father entered into possession of the land conveyed to him by Williams is sufficient in the circumstances of this case to establish possession of the whole of the property so conveyed, including that particular parcel now in issue.”

(See per Verity, C.J. in Rufus Adekunle Wright v. The Ahmadiyya Movement in Islam and anor., W.A.C.A. 2886 of 7th May, 1949, cyclostyled reports for February, March and May, 1949, p.67 at pp. 72, 73). It is therefore clear that the proposition of law, which learned counsel for the appellants has urged, will be applied only where in the circumstances of the particular case its application is justified. In the context of the case its application is justified.

In the context of the case in hand the argument of counsel overlooked the findings of fact and whilst the soundness of the proposition may not be open to question regard must be had to the facts as they were found, if justified, by the court of trial; and, as counsel himself eventually conceded, ft is essential for his submissions that there should be a special finding of possession in favour of the plaintiffs of at least some portion of the land in dispute.

With regard to the issue of possession of the area in dispute the learned trial judge observed as follows:-

“I have also remarked that I do not believe the plaintiffs about their exercise of ownership by the erection of barbed wire fence and locked gate because even the surveyor they employed did not see any fence or locked gate on the piece of land. I am satisfied that when the second defendant purchased the property by Public Auction in 13th October 1956 the plaintiffs were not in possession at all.

It was sought to argue that these findings of the learned trial Judge were unreasonable, unwarranted and unsupported by the evidence but no argument of any substance was addressed to us in this respect and we think that the findings of the Judge are supported and are justified by the recorded evidence.

It is relevant to look at the plan, exhibit “A”, and the portion thereon edged red which the plaintiffs say is the area in dispute. There are no pillars or any delineating objects marking out that portion from surrounding lands and at the very least the plaintiffs’ claims for declaration of title and injunction would have been open to the serious and Indeed fatal objection of lack of proper identification of the area.

The whole parcel of land within which the area in dispute lies is a small one and the learned trial judge found in effect that the evidence did not show that the area in dispute had ever been used along with the area actually occupied and developed by the plaintiffs. The submission of counsel about the use of a small area not in dispute as evidence of the exercise of possession over a larger tract of land cannot in our view be applicable where, as In this case, the propinquity of a small unused area to another small but developed area strongly suggests that the use of one has no reference to the other.

It is true, as learned counsel f

Other Citation: (1968) LCN/1552(SC)