Aina Arupe Obawole & Anor V. Adekunle Aganga Williams & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of summons issued in June 1981, the plaintiffs, Adekunle Aganga Williams and Adebisi Daniel, for themselves and on behalf of the family of Rev. E.E. Williams, sued the defendants, Aina Orupe Obawole and Lamidi Lawal in a representative capacity as representing the Obawole Family claiming:-

(1) Declaration that plaintiffs are the persons entitled to statutory right of occupancy under Edict No.7 of 1978 in respect of the parcel of land shown edged pink on plan No. OGEK 313/81 which parcel is at Ifako Coker Agege, Ikeja Division of Lagos State.

(2) N500.00 damages for trespass committed by the defendants, their servants and agents on the said land.

(3) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said land.

Pleadings were filed and exchanged and subsequently, with leave of court, amended. By their amended statement of claim, the plaintiffs pleaded, inter alia, as follows:

“1. The plaintiffs are the children of one Rev. E.E. Williams who died sometime ago in Lagos and they are pursuing this action as accredited representatives of the said Rev. E.E. Williams family.

2. The defendants are the accredited representatives of the Obawole family otherwise known as Obawole Aina Arupe Family, a family which originated from one Dada Adedipe a hunter who hailed from Ile- Ife some 300 years ago and settled on a vast area of land stretching from Ifako to Ijaiye near Agege within the jurisdiction of this honourable court.
3. The said land in dispute form portion of vast and extensive lands belonging to the Obawole family alias Obawole Aina Arupe Family under Yoruba Native Law and Custom from time immemorial, the same having been originally settled by one Dada Adedipe who migrated from Ile-Ife in Nigeria some 300 years ago.
4. The said Dada Adedipe lived on the said lands and exercised maximum rights of ownership and possession thereon for several years until he died on the lands leaving children surviving him.
5. The children of the said Dada Adedipe after the death of their progenitor succeeded to his landed properties according to native law and custom (sic) themselves, their strangers, their tenants etc. exercising all and full rights of ownership and possession on the said land and still do so on portion thereof.
6. The plaintiffs aver that under and by virtue of:

(a) Deed of conveyance dated 4.5.1909 and registered as No. 94 at page 291 in volume 61 of the Register of Deeds at the Land Registry in Lagos.

(b) Sale effected under Suit No. 111 of 1912 by the Supreme Court of Nigeria.

(c) Receipt issued on 29/8/1912 in furtherance of sale mentioned in (b) above.

One Reverend E.E. Williams became owner in fee simple of the land subject matter of this action.

8. That one Obawole Chief Dada of Otta before 1909 sold the land in dispute to one David Hughes of Ebute Metta.
9. David Hughes was placed in possession and he exercised full rights of ownership and possession without any hinderance from any quarters until the said portion of land was sold to Edwin Harrison Obafemi in 1902 at a price of ‘a340.00.
10. Edwin Harrison Obafemi had full possession of the said landed property until the same was sold to one Jemina Emestina George for the sum of ‘a355.00 who also was in effective possession until 1912.
11. In 1911 by virtue of Suit No. 111/1912, the land in dispute which was then in the exclusive possession of Jemina Emestina George was attached and sold to Reverend E.E. Williams who was issued a receipt in evidence of the sale date 29/8/1912
12. Ever since the said Reverend E.E. Williams took possession of the land and exercised maximum and effective acts of ownership until his death intestate some few years ago.
13. At the death of Reverend E.E. Williams the said land became family property for the benefit of all the children of the said Reverend E.E. Williams.
14. Since the death of the Reverend E.E. Williams all the children inclusive of the 2 plaintiffs herein had been in full and effective occupation and possession of the said land without any hinderance whatsoever.
15. In 1980, the defendants armed with thugs invaded the land in dispute and inspite of the explanation that their ancestors had effectively disposed of the said land to the plaintiff’s vendor and those who sold the said land starting from David Hughes to Edwin Harrison Obafemi and Jemina Emestina George.”

The defendants counter-claimed for (a) declaration that they are entitled to a customary right of occupancy to the land in dispute and (b) an injunction. In their further amended statement of defence and counter-claim, they pleaded thus:-

“1. Save and except as is hereinafter expressly admitted the 1st and 2nd defendants (hereinafter referred to as the defendants) deny each and every allegation of fact contained in the plaintiffs’ statement of claim as if each were set out seriatim and specifically traversed.’

2. Save that the defendants admit the identity of the land the subject matter of the plaintiffs’ claim as pleaded in the statement of claim, the defendants deny each and every allegation of fact in the plaintiffs’ statement of claim.
3. The defendants are not in a position to admit or deny paragraph 1 of the statement of claim.
4. The defendants admit paragraphs 2, 4, 5, 6, of the statement of claim .
5. The defendants deny paragraphs 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21 and 22 of the statement of claim and put the plaintiffs to the strictest proof thereof.
6. The defendants aver that the plaintiffs have not got good title to the land in dispute and will contend that at best are squatters.
7. The defendants will contend that the conveyance mentioned in paragraphs 3 ad 7 of the statement of claim is worthless because no accredited head with the consent and approval of the principal members of the Obawole-Aina Arupe Family ever sold the land in dispute to one David Hughes ‘before 1909′.
8. The defendants aver that David Hughes, the root of title of the plaintiffs did not purchase the fee simple interest of the land in dispute from Obawole.
9. The defendants will rely on the testimony of the said David Hughes in (1) Osho v. Odu Ijebu (2) Osho v. Shomefu which was conducted before Rayner C.J. in 1896.
10. The defendants also aver that David Hughes had no right to sell the land in dispute to anyone because no members of the Obawole family sold the land to him.
11. The defendants aver that David Hughes himself did not say he bought the land from Obawole in fee simple.
12. The defendants aver that all the portions of the family land at that period of were never sold outright to anyone but leased as all the other lessees had testified before Rayner, C.J. in the above mentioned paragraph 9.
13. The defendants also aver that no leases were executed in favour of the said David Hughes.
14. The defendants aver that the presence of the plaintiffs was first detected in 1980 when they purported to have sold portion of the land in dispute to a purchaser.
15. The purchaser was chased off but later came to the family to plead and he was allowed to build.
16. The defendants aver that a large portion of the land in dispute is settled on by members of their family who farm on the land in dispute from time immemorial – long before the plaintiffs show their facts (sic) on any portion of the family land as per survey plan No. AD 584/77 drawn by surveyor Adeoti.”

“Counter-claim