Dr. F Abiola Akerele Vs A. J. Atunrase (1969)

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FATAYI-WILLIAMS, AG. J.S.C.

The appellant as plaintiff had sued the first respondent as defendant for a declaration of title to a piece of land at Itire in Surulere on the mainland of Lagos, as well as for an injunction to restrain the first respondent from dealing with the land. Pleadings were ordered and delivered by both parties. The plaintiff’s amended statement of claim filed on 30th November, 1964, avers that the land in dispute was sold to him by the Abayomi-Anjorin sub-branch of the Alago-Asalu family who were the original owners of the land. The statement of claim further avers that the defendant, who is not a member of the Abayomi-Anjorin family and who had not been so authorised by that family, had divided up the land into plots or lots and was selling these to various persons.

During the exchange of pleadings, the 2nd, 3rd, 4th, 5th, 6th & 7th defendants had asked to be joined as defendants to the action and were so joined in spite of the opposition of the plaintiff. Together with the first defendant, they thereafter filed the amended statement of defence dated 3rd December, 1964. The amended statement of defence did not admit that the original owners of the land were the Alago-Asalu family but avers that the land was sold by one Aboki-Bada to one Disu Labulo (also known as Disu Orisan) on 11th September, 1909 and that the defendants had derived their title through the said Disu Orisan. A large body of evidence was given at the trial and the learned trial judge, Ikpeazu, J., after hearing both sides, preferred the defendants’ case and entered judgment in their favour. In dismissing the plaintiff’s case with costs, he held, inter alia as follows:-

“I hold that the right of the Asalu family over the land in dispute had become extinguished by the long undisturbed possession of the Disu family and by the judgments which upheld this result. This was so even before the partition in 1951 and the result was that the plaintiff’s predecessors in title did not acquire any interest legal or equitable over the land in dispute when it was allotted to them. All the right they could have had became extinguished as aforesaid and they had nothing to transfer to the plaintiff therefor. The plaintiff’s case must fail on the merits and is hereby dismissed with costs assessed at 80 guineas”.

Apart from the oral evidence given by both sides, a large number of documentary exhibits were also produced. The points canvassed at the hearing of the appeal before us range over a whole field of the evidence, both oral and documentary, given in the case and the law as applied to that evidence, Six Grounds of appeal were filed and argued but as the arguments overlapped, it is better to deal with them together as argued by counsel for the appellant. For the appellant, evidence was given that the land, some 2.587 acres in size, was sold to him by the Abayomi-Anjorin sub-branch of the Alago-Asalu family, the conveyance dated 27th July, 1957, (exh. ‘A’), having been executed for and on behalf of said Abayomi-Anjorin family by the appel-lants’ wife (plaintiff’s witness 2) and her aunt one Rabiatu Abayomi who was the head of the family at the material time.

The appellant went into possession soon after the sale. The Alago-Asalu family, according to the traditional evidence adduced, comprises of two main branches, i.e. the Olufajo branch and the Iyajomu branch. Olufajo had three children namely, Isape, Aiyelegun and Aboki-Bada. Iyajomu had two children-Osuro and Oduntan. Oduntan was the father of Abayomi-Anjorin, the founder of the sub-branch through which the plaintiff claims title to the land. Paragraph 8 of the amended statement of claim reads:-

“In an action instituted in the High Court of Lagos in Suit No. 163 of 1946 between the said Abayomi-Anjorin (as sole surviving child of Oduntan (deceased) a scion of the Iyajomu branch of the Asalu family as plaintiff against Lawal Osuro and Odewale Sanni Bada as defen-dants the family property of the Alago-Asalu family was ordered to be partitioned amongst the members of the said family. The land in dis-pute forms portion of the land `apportioned to the said Abayomi-Anjorin (vide plan of partition filed in Suit No. D80215-51)’.”

Plaintiff’s witness 2 (Virginia Iyabo Akerele), pursuant to the above averment, produced and tendered a certified true copy of the proceedings containing the partition order, made on 25thAugust, 1947, and this was admitted as exh. ‘E2’. After the partition the children of the Abayomi-Anjorin family successfully sued the children of one Koji-Labelu for declaration of title in respect of part of the land allotted to Abayomi-Anjorin under the partition order. The judgment in that case dated 7th August, 1956, was produced and admitted as exh. ‘F’ while the judgment of the court of appeal which confirmed the decision was admitted as exh. ‘1’. The appellant himself also testified that after he had obtained the conveyance (exh. ‘A’) he went on the land and saw some persons erecting buildings on some portions of the land. On challenging them they told him that the portions were sold to them by one Koji-Labelu whose auctioneer the first respondent was. For the respondents, the 1st respondent gave evidence as well as three other witnesses-a clerk of the High Court of Lagos (3rd defence witness) who produced some documentary exhibits, a surveyor (4th defence witness) who had prepared plans for the Disu Orisan family, and Alhaji Habib Disu who is a son of Disu Orisan (also known as Disu Labulo). The testimony of the last witness was that some time in 1909, one Aboki-Bada sold the land in dispute to Disu Orisan and executed in his favour a conveyance (exh. ‘D’) dated the 11th September, 1909. With respect to the exercise of rights of possession on the land by his family, Alhaji Habib Disu (2nd defence witness) testified as follows:-

“We went on the land to plant yams and corn and to collect palm fruits from the palm trees on the land. Nobody ever disturbed my father or ourselves in my father’s life time.”

Evidence was also led to show that some time in 1946, one O. S. Bada an off-spring of Aboki-Bada, interferred with the possession of the Disu Orisan family, that he was driven away from the land and was successfully sued for trespass to the land. The judgment in this case was admitted in evidence as exh. ‘P’. They also testified that the Disu Orisan family had successfully sued other persons to whom the Bada sub-branch had purported to sell portions of the land, one such judgment being that produced as exh. `Q’. There is also evidence that in 1959 the Disu Orisan family sold the land in dispute to the first respondent (Joseph Atunrase) who sold to the other respondents. A conveyance dated 13th July, 1959 (exh. ‘T’) was executed in Atunrase’s favour by the Disu Orisan family. Concerning his own possession of the land, the first respondent testified as follows:-

“Apart from the houses built in 1954 by Sangowanwa, Onasanya and the 7th defendant, the rest of the land in dispute was bush and remained so until the purchasers built three to four years ago. After I had bought from Disu Labulo, those who bought from Labulo before his deed of gift was set aside took conveyance from me. These included Sangowanwa, Onasanya, and the 7th defendant. I executed a conveyance for Ashaye. I can’t recollect date of the conveyance, and of other conveyances.”

To our mind, some facts stand out so pre-eminently in this case that they may safely be regarded as the spring-board from which the conflict can be resolved. Firstly, while the appellant claims that the land belonged originally to the Alago-Asalu family the respondents maintain that it belonged to Aboki-Bada personally. Secondly, the apellant’s conveyance (exh. ‘A’) is dated the 27th July, 1957, while the first respondent’s conveyance (exh. ‘T’), is dated 13th July, 1959. Thirdly, both parties claim to be in physical possession of the land or of a substantial portion of it until the institution of the present proceedings. With regards to the first fact, it is manifest that appellant relies on the original ownership of the land by the Alago-Asalu family. This is clearly averred in para. 2 of his amended statement of claim. The respondents put the appellant to proof of this in paragraph 2 of the amended statement of defence. As against the appellant’s averment, the defence set up a conveyance by Aboki-Bada to Disu Orisan in 1909. In the course of his judgment, the learned trial judge observed on this point as follows:-

“I am satisfied that the land in dispute formed part of a large piece of land which formerly belonged to the Asalu-Alago family”. That finding was not challenged before us and the arguments were direct-ed to showing which of the parties legally took over the interests of that family. For the appellant, Chief Williams submitted that the appellant’s title as traceable to the Alago-Asalu family is good and that the conveyance to Disu Ori

Other Citation: (1969) LCN/1688(SC)