Alhaji A. W. Elias Vs Alhaji B.a. Suleimon & 2 Ors (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC

In Suit No. HK/6/59 filed in the Lagos High Court, the plaintiff, now appellant, had instituted an action against the defendants, now respondents, in which he had claimed against them as follows:

“1. Declaration of title in fee simple in respect of the land situate at 13 milestone on the Lagos-Ikorodu Road, Ikeja District, covered by Deed of Conveyance dated the 13th day of January 1958 and registered as No. 1 at page 1 in Volume 234 of the Register of Deeds kept in the Lands Registry at Ibadan and the plan attached thereto.

2. £500 being special and general damages for trespass committed by the defendants on the said land. 3. Injunction restraining the defendants, their servants and/or agents from further trespass on the said land.”

Paragraphs 2, 3, 4, 5, and 7 of the statement of claim filed by the plaintiff in support of his claim read- “2. The plaintiff avers that the said land formed portion of a large area of land belonging to and vested in the Onikoro and Onikosi Chieftaincy families and as original settlers from time immemorial absolutely under Yoruba native Law and Custom. 3. The plaintiff avers that the said Onikoro and Onikosi Chieftaincy families were in possession of the said land exercising continuously all rights of ownership and all acts of possession thereon without any let, disturbance or hinderance from or by anyone until the same was sold to him in or about the year 1957. 4.

The plaintiff avers that on the 13th day of January, 1958, the said Onikoro and Onikosi chieftaincy families executed in his favour the deed of conveyance referred to in the first paragraph of the writ of summons. 5. The plaintiff avers that he and his predecessors in title have been in undisturbed and continuous possession and ownership of the said land until the act of trespass by the defendants started. 7. The plaintiff avers that in the year 1958 the defendants wrongfully broke and entered into the said land, pulled down and destroyed the plaintiff’s signboard thereon and cut down the trees and vegetables on the land.”  Each of the defendants denied the above averments in his respective statement of defence. The first defendant averred in his own statement of defence that he was only concerned with some small portions of the land in dispute and that the plaintiff had never been in possession of these portions which he (the first defendant) occupied in his own right as owner by purchase.

He then explained his own position further as follows:-

PAGE| 3 “4. The 1st defendant avers that he claims five different portions of land four of which are within the area covered in the plan attached to the statement of claim. 5. Three of the said land originally belonged to the Oshorun family and the other two belonged to the Ikoro family, both holding same as owners under Native Customary law. 6. The three portions said to belong to the Oshorun family was sold variously by Wahabi Kalejaiye Onikoro present Chief Onikoro and others, by Badaru Aina, Chief Oshorun and others, each party selling on behalf of and with the consent of the respective families. The parcles of land are situate at Idena.

7. In respect of the land originally owned by the Iroko family, which land is situate at Owode, Kalejaiye, Chief Onikoro sold the land, as head of the Onikoro family to one E.B. Beyioku Alashe on 30th December, 1929, whose children sold the land to the 1st defendant. 8. The predecessors in title of the 1st defendant were in possession of the land referred to in paragraphs 6 and 7 above, and the 1st defendant has, since the sales to him, being in possession and tenants of the 1st defendant’s predecessors in title have since attorned tenancy to 1st defendant.”

The 2nd defendant averred in his own statement of defence that he was only concerned with another small portion of the land claimed by the plaintiff and that the plaintiff had never been in possession of the small portion which he (the 2nd defendant) occupied in his own right as owner. He also averred that the portion, which was then virgin forest, was originally let out to him in 1917, under native law and custom, by Chief Kalejaiye Onikoro as the head and accredited representative of the Ikoro family “who originally owned the land from time immemorial,” and that he has since been in possession of the said portion. Finally, the 2nd defendant averred that in 1956, the accredited representative of the Ikoro family sold the said portion to him and that he has never parted with his possession of it since.

The 3rd defendant averred in his own statement of defence that he is claiming yet another small portion of the land claimed by the plaintiff and that this portion is by the Ogun River near Owode. He admitted that this portion was originally owned by Onikoro Chieftaincy family but that on 6th August, 1907, one Chief Onikoro named Songotola, as the accredited representative of the Onikoro family, and with the knowledge, consent, and approval of all the principal members of the family, sold the land to one Obasa Igbaro; that Obasa Igbaro, immediately after the sale, entered into possession of the land and exercised acts of ownership thereon; that on 24th March, 1912, the said Obasa Igbaro in turn sold the land to one Amusa Balogun the father of the 3rd defendant who also entered into possession.

PAGE| 4 Finally, the 3rd defendant averred that his own father (Amusa Balogun) remained on and cultivated the land until his death about 1954 when he (the 3rd defendant) and his brothers inherited the land and have since been in possession, exercising acts of ownership over it. It is, we think, pertinent to point out that while the plaintiff obtained and tendered in evidence the deed of conveyance (Ex. J) referred to in detail in his writ of summons and which he obtained from his vendors, none of the defendants produced any deed of conveyance in support of the claim made by him in respect of the portion or portions of land to which he claimed to be in possession.

The conveyance (Exhibit J) on which the plaintiff relies shows that- “Chief Wahabi Kalejaiye, the Onikoro of Agboyi, Chief Yekini Oganla, the Wajoba of Agboyi, Amusa Ayo Ogunsola, Yisa Kalejaiye, Latunji Oganla, and Ladunni Onikoro, all of Agboyi, for themselves and as the accredited agents and representatives of the Onikoro Chieftaincy family of Agboyi, Chief Yesufu Oke the Onikosi of Ikosi, Revd. Gbamgbola Taiwo, Joseph Taiwo, Rufai Oloyede, Oseni Ajulo and Buraimoh Dejobi all of Onikosi village for themselves and as the accredited agents and representatives of the Onikosi Chieftaincy family” as vendors conveyed the land in dispute, which they said is communal land which belongs to and is vested in the Onikoro and Onikosi families “absolutely under Yoruba native law and custom,” to the plaintiff “absolutely and for ever freed and discharged from all claims and demands from or by the said Onikoro and Onikosi Chieftaincy families.”

On the other hand, the first defendant relied on the purchase receipts (Exhibits X, Y, Z,U and T), the second defendant on two documents – a tenancy agreement (Ex. 25) and a purchase receipt (Ex. 24) and the third defendant on the purchase receipts (Exs. 21 and 22). No plan of the area or areas sold was attached to any of these documents. In support of his claim, the plaintiff testified that he bought the land from the Onikoro family and obtained the Conveyance admitted in evidence as Ex. J. He then described how the defendants trespassed on the land as follows:

“When my signboard was up and I planted the coconuts, then a fellow named Ben, Ishola Balogun and Yesufu Balogun rooted out the plants. Ben is in the employ of the 1st defendant. Yesufu Balogun and Ishola Balogun are the 2nd and 3rd defendants respectively. I thereby suffered damages to the tune of £100. I warned them and then sued them.

Ben said land belonged to 1st defendant and 2nd and 3rd defendants claimed part of the land. I do not know how first defendant got land. PAGE| 5 The Onikoro said they have not sold my parcel to anybody. Yesufu (2nd defendant) said Onikoro had no right to sell as land had been leased to them. The Onikoro say they have not sold to 2nd or 3rd defendant but only leased to them. Ishola said the same thing.” One Daniel Adeniyi Makinde, (5th P1/W), a Cust

Other Citation: (1973) LCN/1656(SC)