Abdul Hamid Ojo V. Primate E. O. Adejobi & Ors (1978)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C.

In the High Court of Lagos the plaintiff/appellant instituted an action against the defendants claiming:

“1. 200 pounds damages for trespass to all that piece or parcel of land situate lying and being at Mc Ewen Street, (otherwise known as AYINDE STREET) Yaba East, in the Lagos State.

2. Injunction restraining the Defendants, their agents and or servants from continuing trespass to the said land.

DATED THIS 29TH DAY OF JANUARY, 1971.”

Pleadings were ordered and filed. The plaintiff filed a Statement of Claim dated 17th April, 1971 to which the defendants answered in their Statement of Defence dated 7th February, 1972. The defendants later got leave of court to file an amended Statement of Defence. This they did in their amended Statement of Defence dated 24th November, 1972. In the same order plaintiff was granted leave to file a reply to the amended Statement of Defence within 24 hours of the service on him of the amended Statement of Defence. He was unable to comply with the order and his later application dated 9th December, 1972 for extension of time was refused.

Each party in their pleadings claimed ownership of the land in dispute tracing, derivatively, the root of their title. Both sides did not exactly agree as to the location of the land in dispute. In the Statement of Claim the plaintiff averred it is situate at the back of Ladi-Lack School, Yaba. In both the Statement of Defence and the amended Statement of Defence the defendants stated they were not in a position to admit or deny this but specifically stated in paragraph 5 of the their amended Statement of Defence that the land in dispute is at the back of Akinwunmi Street, Yaba. The plaintiff averred that the land in dispute, situate at the back of Ladi-Lack School, Yaba, was the subject-matter of an application No. MOO339 by the defendants for the registration of title under the Registration of Titles Act and was more particularly described in a plan attached to the Statement of Claim and marked Nos. 4 and 17 and was therein verged pink.

The plaintiff claimed ownership of the land in dispute through Oloto Chieftaincy family, which family under native law and custom, had “seized” a vast area of land of which the land in dispute formed a part. The Oloto Chieftaincy family, he said, sold the land in dispute to the plaintiff under a Deed of Conveyance. Paragraphs 4 and 5 of the Statement of Claim which clearly portrayed the plaintiff’s assertions as to the origin of the title, are as follows:

“4. The land originally formed part of a vast area of land seised by the Oloto Chieftaincy family under Yoruba Native law and custom.

5. Under and by virtue of a Deed of Conveyance dated the 27th November, 1943 and registered as No.49 at page 49 in Volume 635, the Oloto Chieftaincy Family sold and conveyed to the Plaintiff the totality of their interest and title to an area of land including the land in dispute and delivered possession to the Plaintiff.”

The defendants, on the other hand, have, in their amended Statement of Defence traced their title to the land to one Rufus Adekunle Wright, now deceased. Paragraphs 4, 5 and 6 of their amended Statement of Defence clearly set out the facts on which they relied:-

“4. The Defendants deny paragraphs 4, 6, 8 and 9 of the Statement of Claim.

5. The land in dispute is at the back of Akinwunmi Street, Yaba and forms a portion of a large area of land which belonged to Rufus Adekunle Wright.
6. The Defendants will rely on the Judgment in WACA 2886 between Rufus Adekunle Wright v. Ahmadiyya Movement-in -Islam and the Oloto Chieftaincy Family wherein the said Rufus Adekunle Wright was declared the owner of the Wrights’ Estate which include the land in dispute and accordingly the Defendants aver that the plaintiff will be bound by the said Judgment.”

The trial of the suit came before Dosunmu, J., in the High Court of Lagos. Both sides led evidence. In proof of his case, the plaintiff relied on the Deed of Conveyance to him from the Oloto Chieftaincy Family dated 27th November, 1943 registered as No. 49, page 49, Volume 635 in the Registry of Deeds, Land Registry, Lagos, which the plaintiff tendered in evidence as Exhibit A. In tendering the document, the plaintiff testified in his evidence-in-chief that:

“Sometimes in 1943, I received from the family a Deed of Conveyance dated 27/11/43 which I can not produce, because it is in the Lands Registry for registration under title. But I have a certified true copy of it. Produced, no objection, admitted as Exhibit “A”.”

As can be seen, no objection was raised to the document. The plaintiff’s root of title was the Oloto Chieftaincy family just as it was the root of title from which the appellant claimed in Mosalewa Thomas v. Preston Holder (1946) 12 WACA 78. In stressing the necessity of a plaintiff proving the root of his derivative title the West African Court of Appeal, in that case, stated at page 80 that:

“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 title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the Defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner. In the present case we are satisfied from the evidence that the appellant has established original ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the certificate of purchase by Samuel in 1943 and the series of conveyance by which the Appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the court would not on equitable grounds make a declaration or disturb the respondent’s possession. This in our view the respondent failed to do.”