A.I.B.A. Kabiawu (For Himself And Members Of Kabiawu Family) V Lawal (1963)

LawGlobal-Hub Lead Judgment Report

Coker J.S.C.

The appellant was the plaintiff in an action against the respondent, tried in the High Court of Lagos and his writ, as amended, reads as follows:-“The plaintiff’s claim against the defendant Is for:-

(a) Declaration of title to the said piece or parcel of land under native law and custom

(b) Possession of the said land which the defendant wrongfully and unlawfully entered into and took possession thereof.

(c) The sum of £200 (Two hundred pounds) damages for trespass and injunction restraining the defendant and his agents from further acts of trespass on the said land.” Pleadings were ordered and delivered and after hearing both parties, Lembo, J., in a considered judgment dismissed the case of the appellant with costs.

As clearly stated on the writ and on all subsequent processes, the appellant sued for himself and the Kabiawu family, his immediate predecessor in title being one Abdulai Jinadu (alias Abdulai Jinadu Kabiawu) who died in Lagos intestate and was survived by the appellant and other children upon whom, according to the evidence, the property devolved as family property.

According to the pleading and the evidence given in support of his case, the appellant’s case is that the land in dispute originally belonged to the Eyisha family and it was held by the court that the sale to Oseni Falade by one section only of the family was Invalid (see Exhibit A); that following this and other similar unauthorised sales of family lands by the Fafunmi branch, the Osun Apena branch instituted legal proceedings in 1915 (Suit No. 113 of 1915) (Exhibit A) in order to halt such sales but that this action was compromised on the terms inter alfa, that those to whom lands had been so sold (and this included Oseni Falade) should pay specified sums of money to the osun Apena branch who then undertook to “put the said purchasers who pay in accordance with the terms of this agreement into possession of the lands purchased and to execute conveyance for the said lands when called on”.

It was also part of the appellant’s case that Oseni Falade paid the amount shown against his name, i.e. £10, to the solicitors of Osun Apena branch; that he, along with others, thereafter successfully moved the court for an order that he should be put in possession of his land (Exhibit B); that he later sold the land in dispute to one Arinola who thereafter sold to Abdulai Jinadu kabiawu, the father of the present appellant. The appellant also contends that he and his predecessors in title have always been in possession of the land and have exercised manifestly rights of possession thereon until the year 1961 when the respondent disturbed his possession and Indeed took possession of the land.

The respondent on the other hand claims that the Eyisha family, the original owners of the land, sold the land in dispute to one Gbadamosi Oladlpo (see Exhibit H dated the 9th December, 1953) and that Gbadamosi Oladipo later sold the land to him the respondent In 1961 as per the conveyance Exhibit K dated the 10th November, 1961. He also claims to have been in possession of the land in dispute as well by himself as by his predecessors in title.The learned trial Judge in the course of his judgment expressed some doubts as to whether in view of the fact that no plans were attached to the application for an order for possession (i.e.,Exhibit B) it was established by the appellant that it was the land in dispute into which Oseni Falade was let into possession by the order made in Exhibit B.

He eventually held that even if it was, Oseni Falade had at best acquired only an equitable interest in the land; that the respondent and his predecessors in title had no notice of his equitable interest as he was not in possession and that the legal estate of the respondent founded upon the conveyance from the Eyisha family (that is Exhibit H) must prevail over the equitable Interest which was all that Oseni Falade had.

Before us it was contented on behalf of the appellant that the learned trial Judge was in error of law since the radical title of the Eyisha family to the land in dispute was one under native law and custom and the sale to Oseni Falade envisaged the disposal only of a similar interest; and that on completion of such sale by putting the purchaser in possession, the absolute interests of the Eyisha family under native law and custom are exhausted and no question arises of their having only transferred the equitable interest and retaining in themselves the legal estate.

It was also submitted that despite the phraseology employed in the conveyance (Exhibit C) to the effect that an estate in fee simple was being transferred, the Court should hold that what the grantors therein could only transfer and what the conveyance infect transferred was the absolute Interest under native law and custom bought from the Eyisha family. On this point learned counsel for the appellant referred us to the cases of Oguntokun v. Amodu Rufai (1945) 11 W.A.C.A. 55 and Ogunbambi v. Abowaba (1951) 13 W.A.C.A. 222.

We are of the view that these contentions are well founded. Undoubtedly the Eyisha family owned the land by virtue of native law and custom and where the entirety of their interests in land under such native law and custom is sold, it cannot be argued that they retained any further Interest in such land. A valid sale or transfer of the absolute interest under native law and custom completely exhausts the rights of the vendor and no question arises of transferring only some parts or aspects of those Interests.

Now as regards the sale to Oseni Falade by the Eyisha family, the position is clear. Oseni Falade was one of those to whom abortive sales of Eyisha family lands were made by only one section of that family. His name appears as No. 33 on the list attached to the terms of settlement in the proceedings, Exhibit A, and it was shown there that on payment of the amount of £10 he should be entitled to be put in possession and also to call for the execution of a conveyance in his favour. The proceedings, Exhibit B, show that he was one of those who on the 7th September, 1915, obtained an order for possession of their lands purchased from the Eyisha family. The appellant’s case is that Osenl Falade paid this amount of £10 and this much was admitted by the witness Odewale Savage Bads, the only member of the Eyisha family who gave evidence on behalf of the respondent. On these facts, which were established at the trial, there can be no doubt that on the 7th September, 1915, the original invalid sale to Oseni Falade priority to 1913 was validated and his erstwhile wrongful possession legalised by order of court. As from that date he acquired the absolute interests under native law and custom of the Eyisha family in the land in dispute.

The learned trial Judge, as stated before, had some qualms as to whether or not it was established that the order for possession in favour of Oseni Falade was in respect of the same land as he had purchased from the Eyisha family but we are satisfied that the evidence of the plaintiff and his witness Falade, the documents put in as Exhibits A and B, and the evidence of the defendant’s witnesses Alabi and Bade put this matter beyond doubt.If then, as it is rightly contended, the Eyisha family had completely disposed of their absolute interests under native law and custom to Oseni Falade in 1915, they clearly had nothing which they could validly sell to Gbadamosi Oladipo (the predecessor in title of the respondent) in 1953. In so far therefore as the conveyance Exhibit H purported to convey any interest in the land in dispute to the respondent’s predecessors in title, It is worthless and certainly transferred or conveyed nothing.

In the same way the conveyance from the children of Gbadamosi Oladipo and Lasisi Ajibola (to whom Gbadamosi Oladipo had sold but without executing a deed of conveyance) to the respondent is worthless and transfers or conveys no interest of any kind in the land in dispute to the respondent. It is clear therefore that when the respondent entered on the land in dispute in 1961, or thereabouts, he had no right whatsoever to do so and his entry was wrongful.

It was further contended on behalf of the appellant that there was ample evidence of possession in support of his case and that the learned trial Judge mis-directed himself by holding that evidence of acts of ownership given on behalf of the plaintiff was equivocal.

On this point, learned counsel for the respondent submitted, with some show of force, that there was no evidence of acts of possession by the appellant and his predecessors in title on the land and that indeed the appellant admitted that the land was vacant in 1961 when he first saw people on it. On this point he drew our attention to the case of Omosanya v. Anifowoshe (1959) 4 F.S.C. 94. This submission, we must point out, overlooks the evidence present in this case but absent in the Omosanya case of the exercise of acts of possession by Oseni Falade and his successors in title. The relevant passage in the judgment reads as follows:-

“The plaintiff admits that the land was vacant in 1961 when he first saw people on it. Evidence of acts of ownership exercised by plaintiff’s predecessor-in-title is equivocal in view of the fact that details of such acts were not given in evidence. Even if they were, I would still require proof of such manifest acts of ownership as were exercised on the land in dispute since 1925 by the plaintiff and his family as to which there is regrettably, no evidence. It seems to me, therefore, that since Abdulai Jinadu (alias kabiawu) died in 1925, no acts of ownership,besides

watching to see that nobody trespassed thereon, have been exercised on the land by his successors-in-title.”

We do not agree that details of acts of ownership or possession exercised by the appellant and/or his predecessors in title were not given in evidence. The witness, Adewale Falade (son of Oseni Falade) testified that his late father put tenants on the land and indeed that his late father sold a portion of the land purchased by him to one Arinola as far back as 1918. The appellant himself stated that his own father took possession of the land soon after his purchase, sold a portion of it in 1925 to one Green (as per conveyance Exhibit F) and also sued one Afikpo for damages for trespass on a portion of the land (see Exhibit E).

There is also the order for possession of the land in favour of Oseni Falade (Exhibit B). Besides this, the learned trial Judge seems to have accepted the evidence that since the death of Abdulai Jinadu Kabiawu,the plaintiff maintained a watch over the land in dispute. It seems to us that such evidence as there was of the possession of the appellant and his predecessors in title was cogent and unequivocal and certainly sufficient to maintain an action for trespass against the respondent who had entered on the land without any semblance of a title. We point out moreover that the case of the appellant was not based on long possession alone and in such a case the observations of the West African Court of Appeal in Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 at p.80 to the following effect are pertinent:

“The learned Judge appears to have held the view that there should have been some direct evidence that the Oloto family resumed possession thereof at death of Ogun. We see no necessity for any such evidence. Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his established title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership”.

As observed earlier on in this judgment and indeed as found by the learned trial Judge, the appellant has claimed title to the land in dispute through Oseni Falade to the Eyisha family. This family are the undisputed original owners of the land in question and it is clear that such title has been established.

The appellant had claimed a declaration of title under native law and custom and had clearly established such title. It is true that a great deal of confusion had been introduced into this matter by the conveyance Exhibit C which had purported to convey to Abdulai Jinadu Kabiawu an estate in fee simple. But it is clear that the conveyance never recited that Oseni Falade had a fee simple and there is no dispute that an owner of land under native law and custom can transfer his absolute interest and describe the entirety of such interests as conveyed by him as an estate in fee simple. See per Berkeley, J., in Balogun, etc v. Saka Chief Oshodi (1931) 10 N.L.R. 36 at pp. 47 and 48, and also Privy Council in Oshodi v. Balogun and others (1936) 4 W.A.C.A. 1 at p. 2; see also Griffin v. Talabi (1948) 12 W.A.C.A. 371. It is manifest that Oseni Falade and Arinola by Exhibit C could and did transfer only the entirety of the interests which they themselves possessed in the land. The appellant is therefore entitled to the declaration which he claimed.

Again, the appellant established that he was in possession of the land and that the defendant without any justification whatsoever entered the land and stored building materials on it thereby evicting the appellant therefrom. The appellant is therefore also entitled to damages for trespass, perpetual injunction and an order for possession of the land. There is no evidence of any act of waste done on the land by the respondent since his entry and we are of the view that the appellant is therefore only entitled to nominal damages which we fix at £25.

This appeal therefore succeeds and it is allowed. The judgment of the High Court of Lagos in Suit No. LD/255/62, including the order for costs, is hereby set aside and the following order is made:-

(i) The appellant is hereby granted a declaration of title as claimed to the land in dispute, coloured crimson in the plan attached to the conveyance Exhibit C.

(ii) The appellant is also granted possession of the said land.

(iii) The respondent shall pay to the appellant £25 damages for trespass to the said land.

(iv) The respondent is hereby restrained by himself, his servants and/or agents from further trespass on the said land.

(v) The respondent shall pay the costs of the proceedings both in the High court fixed at 90 guineas and in this Court assessed at 55 guineas. 

Other Citation: (1963) LCN/1072(SC)