Alhaja Sabalemotu A. Kaiyaoja & Ors V. Lasisi Egunla (1974)

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DAN IBEKWE, J.S.C. 

On the 1st day of March, 1966 the plaintiffs in this case (herein appellants) instituted an action against the defendant (herein respondent) claiming declaration of title to that “piece or parcel of land situate, lying and being at 23, Safebirth Street, Mushin via Ikorodu Road, and injunction to restrain the defendant, his servants and/or agents from further acts of trespass.” The plaintiffs are the surviving descendants of the late Kaiyaoja who died in 1924 intestate leaving a large parcel of land on Ikorodu Road.

Their root of title dates back to 1914 when their late father first acquired a fee simple estate in the land by virtue of a deed of conveyance dated 16th November, 1914. After his death in 1924 the then surviving children, who were seven in number, succeeded him. It is the plaintiffs’ case that after the death of the late Kaiyaoja the land devolved on his surviving children and grand-children under Yoruba Customary Law.

There is undisputed evidence that, in 1946, the then Nigerian Government acquired a portion of the said land for the construction of the Lagos – Ikorodu Road, and that compensation was paid to the plaintiffs as owners of the land so acquired.

It is also part of the plaintiffs’ story that, before the payment of compensation, certain members of the family had purported to act through one Momoh Fashola Odogbo as their agent, but that the matter was referred to the court, which held that all the children and grandchildren of the late Kaiyaoja were entitled to share in the compensation. (Exhibits “C” and “C1” – the judgment and the schedule of claimants respectively). This story was not challenged at the trial.

Subsequently, in 1948, news reached the plaintiffs that the said Momoh Fashola Odogbo was trafficking in their family land. Immediately and without hesitation, they published warning notices on the 1st May, 1948 and 17th December, 1948 respectively. (Exhibits “D” and “E”.) As the rumour still persisted, the plaintiffs were again obliged to publish a Public Notice in the “Daily Service” of November 28, 1950. (Exhibit “D”) And even as late as 1958, the plaintiffs had to publish yet another Warning Notice dated 27/8/58. (Exhibit “F”.) Incidentally this particular Warning Notice was specifically aimed at the defendant who had then entered upon the land in dispute.

It is the plaintiffs’ contention that the disputed land forms portion of the larger parcel of land which they inherited from their late father Kaiyaoja. There is unrebutted evidence that in 1949, the plaintiffs prepared an allotment plan in respect of the whole land. (Exhibit “G.”) Ample evidence was also led at the trial to prove that the land in dispute falls within the allotment plan. The surveyor who gave evidence for the plaintiffs identified it as plots 79 and 80 on the allotment plan.

On the other hand, the defendant’s case is that he bought the land in dispute from one Pius Adebowale Fasanya. His root of title rests entirely on a deed of conveyance from Fasanya dated 9th September, 1957. It is part of the defendant’s case that, thereafter, he went into possession. According to the defendant, he commenced building on the land in dispute in November 1958 and completed it in 1959. Clearly, the building must have gone up with astonishing speed. It is relevant to observe here that the defendant in his statement of defence made no reference whatsoever to the said Momoh Fashola Odogbo who, according to the plaintiffs’ allegation, was illegally meddling with their family land. As a matter of fact, the defendant never claimed his title through Odogbo, and no mention was made of Odogbo in his evidence-in-chief. But under cross-examination the defendant was so badly shaken that he was obliged to confess as follows:-

“Fasanya told me he bought the land from Odogbo …….. I don’t know Odogbo. I did not know where Odogbo got the land from.” (The underlining is ours).

We shall have cause to revert to this serious admission made by the defendant to the effect that his immediate predecessor-in-title, Fasanya, had confided in him that he bought the land in dispute from Odogbo; and that he, the defendant, did not know where Odogbo got the land from. It is strange that Odogbo was not called as a witness by the defence. Accordingly, the defendant’s root of title seemed to hang in the air.

After hearing evidence from both sides the learned trial Judge, Odumosu J., dismissed the plaintiffs claim on the grounds that they had failed to establish their title to the land in dispute, and also that the defendant had succeeded in his plea of acquiescence, laches, and standing-by.

Dissatisfied with the decision of the learned trial Judge the plaintiffs lodged an appeal to this court. Mr. Abudu, learned counsel for the appellants sought and obtained leave to argue the following grounds of appeal:-

“1. The learned trial Judge erred in law when he failed to compare plaintiffs root of title with that of defendant so as to conclude which of the parties had legal right to possession of the land in dispute. The defendant is a squatter since his vendor had no legal estate to transfer. The sale is void.

2. The learned trial Judge misdirected himself in law when he found that plaintiffs failed to establish the title of Kaiyaoja to the land in dispute the identity of which land is clearly known to both parties as admitted in pleadings.
3. The learned trial Judge erred in the law when he found that the plaintiffs acquiesced and that defendant is a purchaser without notice whereas the defendant had notice both directly and constructively.
4. The judgment is against the weight of evidence.”

Before dealing with the points raised by the learned counsel for the appellants, we think that we should first of all draw attention to one aspect of this case which, however, was not canvassed before us. Both in their pleadings and at the trial, the plaintiffs virtually described Odogbo as a villain, who took delight in selling their family land without their consent. The defendant, on his part, very carefully avoided tracing his title to Odogbo. But, fortunately for all concerned, it happened at the trial that Fasanya, who sold the land to the defendant, had himself bought it from Odogbo. In our view, this important admission on the part of the defendant points irresistibly to the conclusion that the plaintiffs in the present case should have a better title to the disputed land as against the defendant.