Abudu Kehinde Vs Wahabi Irawo & Ors (1973)
LawGlobal-Hub Lead Judgment Report
ELIAS CJN.
In suit No. HK/148/61 instituted before the Ikeja High Court, the plaintiff (herein respondent) claimed against the defendant as per his writ of summons dated November 14, 1961: PAGE| 2 “(a) the sum of £100 being damages for trespass committed by the defendant, his servants and or agents on the plaintiff’s land at Olorunsogo, Mushin District covered by Deed of Conveyance dated the 5th day of February, 1952, registered as No. 74 at Page 74 in Volume 911 of the Lands Registry at Lagos (now at Ibadan). (b) an injunction restraining the defendant, his servant and/or agents on the said land.”
According to the averments in the plaintiff’s Statement of Claim and the evidence adduced in support, the land in dispute is situated at Olorunshogo, Mushin District, Lagos, is covered by a Deed of Conveyance dated February 5, 1952 and registered as No. 74 at page 74, in Volume 911 of the Lands Registry, Lagos, (later removed to Ibadan) as per plan attached and edged red thereon.
The land is part of a large area of land belonging to and vested in fee simple in possession in Alhaji Alli Fahm who sold it to one Paul Izinare Samuel under and by virtue of a Deed of Conveyance dated May 1, 1917 and which was duly registered as No. 81 at page 308 in volume 14 (Exhibit B); between 1917 and 1933, when Samuel died, there was no disturbance of his possession and use of the land which he then devised by his will dated July 5, 1929 to Maurice Adenrele Okuntola Samuel for an estate in fee simple; the latter sold a portion of this land to Lawani Akowonjo (P.W.3) by means of a conveyance (Exhibit C) dated April 25, 1946 and duly registered as No. 22 at page 22 in Volume 700 in the Lands Registry. Lawani Akowonjo sold this portion to N.A.B. Animashaun (P.W.6) by virtue of a conveyance (Exhibit D) dated March 10. 1951 and registered as No. 49 at page 49 in Volume 855, and Animashaun then sold the portion to the plaintiff under a conveyance (Exhibit E) dated February 5, 1952 and registered as No. 74 at page 74 in Volume 911.
The plaintiff adduced further evidence to the effect that, since the land in dispute was sold to him, he had cleared it, fenced it round and put a caretaker in charge; and that there had been no disturbance until 1961 when he learnt that trespassers were laying foundations therein for buildings. He was directed by bricklayers on the site to the 1st and 3rd defendants. In suit NO. HK/53/61 (Exhibit F), he sued unsuccessfully the 1st defendant who, after some prevarication, told him that it was the 2nd and the 4th defendants who were erecting the buildings. He thereafter instructed his solicitors, Mr. Karimu Kotun (who died soon afterwards), to write warning letters to all trespassers, and he himself warned them verbally before deciding to institute the present action against all four defendants because they disregarded all the warnings and continued the buildings.
PAGE| 3 The defendants, on the other hand, averred that the land in dispute belonged to the Ojomo Eyisha Family who had been settled there for over 300 years. Abudu Raimi Apena (D.W. 20 gave evidence that in 1961, the Ojomo Eyisha Family sold the land to Fasasi Alamu (D.W.3) by a conveyance dated March 16, 1961 and registered as No. 23 at page 23 in Volume 477 (Exhibit K). Fasasi Alamu made his three parcels of land measuring 100 feet by 50 feet each into four plots measuring 100 feet by 371/2 feet each. On October 10, 1961, Fasasi Alamu sold to Alli Owe and Madam Stella A. Adekunle plots A and B respectively shown and known as No. 58 and 60, Alhaji Otta Street on a plan prepared and tendered as Exhibit I by Mr. Alaka, a licenced surveyor.
Abudu Raimi Apena (D.W.2) joined in signing Exhibit K and deposed that there had been no challenge to their right up to the 1961 sale. This principal defence witness also said that Aboki Bada who was the predecessor in title of Alhaji Fahm had no authority to sell since the large area had never been partitioned among the members of the Eyisha Family. He claimed that he had been a member of the Eyisha Family council since 1922 and that he started signing conveyances as a representative in 1953.
He admitted having heard of Fafunmi who was sued by the Osun Apena Branch in Suit No. 113/1913 for selling Ojomo Eyisha Family land. The relevant part of the consent judgment (Exhibit Q) reads: “That the Osun Apena and his people in consideration of the various purchasers paying the amount standing against their names in the list attached undertake to put the said purchasers ………. into possession of the lands purchased to execute conveyance for the said lands when called on.’
On the attached list, Alhaji Fahm is shown as No. 46 and was to pay £10. Continuing his evidence, Abudu Raimi Apena (D.W.2) was positive that the family had always been known as the Ojomo Eyisha family, and never as Aboki Bada Family; he further said that the name Ojomo Eyisha Family is not the result of a fusion of the Fafunmi Branch and the Osun Apena Branch, and denied that it came into existence only since the 1913 suit. He, however, admitted under cross-examination that till today the two branches of the family still exist; the Fafunmi Branch headed by Odewale Savage Bada and the Osun Apena Branch headed by himself.
He finally agreed that the Ojomo Eyisha Family has no over-all head as such. As to the identity of the land in dispute, the learned trial Judge observed as follows:- “A licensed surveyor, Mr.. Alaka (P.W.5) was able to confirm that the land sold to plaintiff edged Pink in Exhibit ‘I’ is the same as the land sold by the Eyisha Family in 1916 in Exhibit ‘K’. Counsels for all the parties agree as to the identity of the land in dispute.” It would seem that, in spite of the consent judgment in suit No. 113/1913 of 1915, Alhaji Fahm did not pay the £10 stipulated in the list attached to Exhibit Q and that Fafunmi continued to convey portions of family land. The learned trial Judge found it necessary to draw this analogy: “This case is similar to the position in Odunsi v. Boulos reported in 4 WACA at page 234. In that case one Anikin was to pay the £10 in accordance with the consent judgment of 1915 (Exhibit Q) when the Osun Apena would have given him a conveyance.
PAGE| 4 Anikin did not pay and did not receive a conveyance from Osun Apena. In 1915 Anikin purported to sell and Fafunmi joined in the conveyance. It was held in the court below that Anikin had acquired at most a voidable customary title voidable at the instance of the Osun Apena Branch.
In this case, Fafunmi followed up the sale by Aboki Bada and conveyed as the head of the Aboki Bada Branch to Alhaji Fahm in 1917, as shown in Exhibit ‘G’. What Alhaji Fahm got in 1917, through Exhibit ‘G’ was a voidable customary title voidable at the instance of the Osun Apena Branch. There is however nothing to show that any steps have been taken in this direction which is the proper procedure available.” In the opinion of the learned trial Judge the Ojomo Eyisha Family should have asked the court to set aside the sale to Alhaji Fahm in 1917, as was held by Jibowu, J., in the unreported 1948 Suit No. 105 in which Fafunmi had sold land in 1915 as head of Aboki Bada to one Cardoso; but the Eyisha Family did nothing between 1917 and 1961 when they purported to sell the land in dispute, thus treating the conveyance by Fafunmi in 1917 as a nullity.
The learned trial Judge found that the plaintiff had issued sufficient warning to the defendants whilst the building was in progress, that Fasasi Alamu bought on March 16, 1961 (Exhibit K) and that on October 10, 1961, he sold the two plots to Alli Owe and Madam Stella Adekunle (as per Exhibits L & M), that within two months on December 20, 1961, Exhibit N which is a mortgage of a building thereon from Alli Owe to Agbonmagbe Bank Ltd. had been executed, and that the plaintiff had already in November, 1961 filed his writ of summons.
The learned trial Judge further made this pertinent observations: “It was after action had been instituted that Madam Stella Adekunle conveyed No. 60, Alhaji Otta Street to the 4th defendant in May, 1964, by conveyance (Exhibit ‘P’) registered as No. 37 at page 37 in Volume 744 at Ibadan.
This 1st defendant purchased from Agbomagbe Bank in October 1963 witnessed by conveyance (Exhibit ‘R’) registered as No. 7 at page 7 in Volume 699 at the Lands Registry, Ibadan. It is strange that when Exhibits ‘L’, %
Other Citation: (1973) LCN/1751(SC)
