Alhaji A.w. Akibu V. Joseph Opaleye & Anor (1974)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C.

In suit 0080/67, tried by Kazeem J. at the Lagos State High Court held at Ikeja, judgment was entered in favour of the Plaintiffs, who are respondents before us, against the Defendant, who is the appellant, in the terms of the writ of summons for declaration of title and injunction. The appellant has appealed to this court being dissatisfied with the judgment of the learned trial judge delivered on 18th of May, 1973.

There is no dispute as to the identity of the land. The dispute arose as to the root of title of either party. The Plaintiffs claimed that the land was sold by one Cardoso to Dawodu, who mortgages to one Elliott The mortgage was purchased by Elliott and the trustees of his estate sold the land to the Plaintiffs. On the other hand, the defendant claimed to have derived his title from the children of one Makinde, who bought from Cardoso. One of the points for decision as to title to the land was whether the land in dispute formed part of the land sold by Cardoso to Dawodu, as it is not in dispute that Cardoso still has other land apart from the one sold to Dawodu.

For the plaintiffs, the averments as to their title were that the land verged brown in Ex. K was part of a large piece of land sold by the Ojomo Eyisha family to Cardoso, and that the latter sold a portion to V.A. Dawodu, who mortgaged the whole piece of land to late Elliott. On the other hand the defendant averred that, whilst he did not dispute the mortgage of a portion of the land to Dawodu, his own piece of land did not form part of the land disposed of by the later Cardoso to Dawodu. His predecessor in title bought the land from Cardoso in 1926 and later sold to one Moses Makinde in 1936, the descendants of whom sold to the defendant. It was also averred that Makinde cultivated the land, planting economic trees i.e. cocoa, kolanuts etc.

The relevant portions set out the averments in the Statement of Claim are as follows:

“4. The land originally formed portion of a vast area of land owned absolutely by the Ojomo Eyisha Family according to Yoruba Native Laws and Customs.

5. The plaintiffs became the owners in fee simple or alternatively as absolute owners under native laws and customs of the land in issue under and by virtue of the following deeds of conveyances:
6. A deed of Conveyance dated 14th June, 1958 from Adams Akinwunmi and three others to the plaintiffs.
7. A Deed of Conveyance dated 20th August, 1959 from Adams Akinwunmi and three others to the plaintiffs.
8. A Deed of Conveyance dated 22nd September, 1960 from O.S. Bads to the plaintiffs.
9. A Deed of Conveyance dated 24th March, 1962 from E.J.S. King to the plaintiffs.
10. A Deed of Conveyance dated 24th December, 1962 and registered as No. 35 page 35 in volume 621 of the Lands Registry of Ibadan.
11. Before the sale to the Plaintiffs their predecessor in title were in effective possession of the land and Plaintiffs were put in possession soon after the sale to them.
12. The Plaintiffs, later in 1958, made a plan of the building which they proposed to erect on the land and did commence the said building thereon early in September, 1959.
13. Sometime in September, 1959, the defendant, his Agents, and or Servants wrongfully entered the sold land, broke down part of the concrete walls of the said building, and the defendant forcibly planted himself on the land.
14. As a result of defendant’s action the Plaintiffs have since been unable to continue with the said building and defendant threatens to act violently towards the Plaintiffs, their servants and or agents, should Plaintiffs continue with the said building.”

The defendant in his Statement of Defence averred:

”2. The defendant admits paragraphs 1, 2 and 3 of the Statement of clairn.

3. The defendant denies paragraphs 4 and 6 of the Statement of Oaim and puts the plaintiffs to the strictest proof of the allegations therein contained.
4. The defendant is not in a position to admit or deny paragraphs 5 and 7 of the Statement of Claim but nevertheless puts the plaintiffs to a strict proof of the allegations therein contained.
5. In answer to the plaintiffs’ claims, the defendant avers that the land in dispute forms part of a large area of land which was sold and conveyed by Fafunmi as Head of Aboki Bada’s family to L.A. Cardoso. The area so conveyed is registered as No. 79, Page 301, Volume 92 of 23rd March, 1915.
6. Later, L.A. Cardoso sold the said land in dispute to one James Ode in 1926, from whom one Moses Makinde bought the same in 1936. Makinde developed the said land and enjoyed the use of same and held it for an estate of inheritance in possession until the time of his death on the 25th day of July, 1949.
7. During his lifetime, the said Moses Makinde planted cocoa, kola orange and pear trees on the land and was reaping all of them for his own benefit and when he died the said land with the crops thereon was inherited by his children and they too continued to enjoy the use of the land and the crops on it without let or hindrance from either the plaintiffs or his alleged predecessorsin-title up to the time they sold it to the defendant in August, 1959, and conveyed the same to him by a deed registered as No. 60 at Page 60 in Volume 349 of the Lands Registry of Ibadan.
8. The defendant’s predecessors-in-title were in effective possession of the land before the sale and the defendant was put in possession soon after the sale to him and has since remained in possession enjoying the use of the land and the crops on it.
9. The defendant admits that by September, 1959, when he had bought the land in dispute, he entered into possession as was his right by purchase and when he noticed that the plaintiffs were trespassing on it by entering upon it cutting down his economic crops thereon (e.g. cocoa, kola, orange, pear and palm trees) and generally laying it waste, he stopped his agents having made reports to the Police about their activities on the land.
10. The defendant will contend at the trial that he and his predecessors in-title have been on the land openly using the same as absolute owners for at least forty years by planting economic trees thereon and enjoying the fruits thereon all the time without any challenge by the plaintiffs’ alleged predecessors-in-title and also by defending it against trespassers and other intruders, and that therefore the plaintiffs’ predecessors-in-title are estoppel from asserting any claim to it (if they have any, which is denied) and thus have no property in it which they can validly transmit to the plaintiffs.
11. The defendant also relies on all legal and equitable defences open to him as laches, acquiescence, standing-by, stale claim and the Statutes of Limitation. “The learned trial judge, after reviewing the evidence before him, resolved the claim in his judgment thus:

“As between the plaintiffs and the defendant, I am therefore satisfied that the plaintiffs have established a better title to the land in dispute.

The defendant also claimed that he and his predecessors-in-title had been in undisturbed possession of the land in dispute since Cardoso bought it from Fafunmi in 1915 until the plaintiffs were alleged to have trespassed on the said land in 1960. I have already held that the land in dispute was part of the portion sold by L.A. Cardoso to W.A. Dawodu in 1921. Hence the Cardoso Family would have ceased to be in possession since then. There is also nothing besides the evidence of Ajibola Makinde (D.W.3) and Alhaji Tmu Davies (D.W.5) which I disbelieve to show that either James Ode or even the Makinde were ever in possession of the land until 1959. If at all the defendant was ever in possession of the land, it was when he purported to have bought it from the Makinde in 1959. But,the plaintiffs first purported to have bought the land since 1958 and 1959 when they were put in possession by the Ojom Eyisha Family-See Exhibits “A” and “B”, and they claimed to have found the land uncultivated at that time. Although there might have been some wild plantations on the land in dispute prior to 1959, I am satisfied from the evidence before me that the plaintiffs were in possession of the said land prior to the defendant. Hence the defence of long possession raised by the defencer also fails.

In the circumstances, the plaintiffs are entitled to the declaration sought and they are hereby declared owners in fee simple of the land in dispute situate at Apesin Street, Ewe Aigbo, Mushin in Ikeja judicial Division.

As regards the claim for an injunction, since the plaintiffs have been declared the owners thereof and it is established that. the defendant had ousted their possession, the defendant his agents and or servants are thereby restrained forthwith from continuing to trespass on the land in dispute.

The defendant to pay costs assessed at N200 to both plaintiffs.”

At the hearing of this appeal, learned counsel for appellant applied and was granted leave to file and argue for fresh grounds of appeal in substitution for those originally filed with the notice of appeal. His main complaint was that the learned trial judge failed to consider the unchallenged evidence before him, stretching from 1926 as pleaded and deposed to by the appellant and his witnesses with regard to his defence of long possession. The complaint is embodied in the two grounds of appeal, grounds 3 & 4 which read: