Chief L.a. Odunsi & Ors. V.francis E. Pereira & Anor. (1972)

LawGlobal-Hub Lead Judgment Report

Parties

1. CHIEF L.A. ODUNSI, OJORA OF LAGOS
   2. CHIEF A. BANWO, ARO OF LAGOS
   3. CHIEF T.F. GIWA, ODOFIN OF LAGOS(For themselves and on behalf of the Ojora Chieftaincy Family) Appellant(s)

AND

1. FRANCIS E. PEREIRA
   2. CHIEF DR. F.A. AKERELE(For themselves and on behalf of the Pereira-Sheteolu Family) Respondent(s)

UDO UDOMA, J.S.C. 

This is an appeal against the judgment of the late Omololu, J., delivered on 21st January, 1967, in suit No. LD/599/65 in the High Court of Lagos wherein the plaintiffs, herein respondents, were granted a declaration of title according to native law and custom to 69 acres of land known as Sheteolu Village, situate and being at Iganmu, Lagos. The counterclaim by the defendants, herein appellants, for a declaration that the said land is the property of Ojora Chieftaincy Family and for forfeiture, was dismissed.

As endorsed on the writ of summons the claims of the plaintiffs read as follows:-

“1. The plaintiffs’ claim against the defendants is for a declaration of title according to Native Law and Custom to all that piece or parcel of land known as Sheteolu Village “situate, lying and being at Igonmu (otherwise called Iganmu) in the Federal Territory of Lagos, property of the plaintiffs wrongfully claimed by the defendants.

2. The said land is covered by a Crown Grant dated 23rd August, 1871, and registered as No. 392 of the Crown Grants Register.
3. The defendants have recently and persistently interfered with the rights of plaintiffs to the said land by preventing surveyors and their workmen from carrying on their work.
4. An injunction restraining the defendants from interfering with or in any way entering upon the said land.”

The defendants’ counter-claim as set out in the Notice of Counter-claim and in the statement of defence and counter-claim are in the following terms:-

“1. A declaration that the Ojora Chieftaincy Family are the owners under native law and custom of all that piece or parcel of land shown on Plan No. CT. 18/66 dated 26th March, 1966 and prepared by Mr. C.T. Olumide, Licensed Surveyor.

2. A declaration that the plaintiffs have forfeited their rights as customary tenants of the Ojora Chieftaincy Family on the said land.

And

3. Recovery of possession of the said land from the plaintiffs.”

Pleadings were ordered and duly filed and delivered. There was also filed and delivered a reply to the statement of defence and counter- claim wherein the plaintiffs joined issues on the averments contained in the statement of defence and pleaded long possession, laches and stale claim as defences to the counter-claim for the declaration of title and forfeiture.

It is important to note that in the pleadings, the identity of the land, the subject-matter of the claim and counter-claim, was not in dispute. It was also not in dispute that the ancestors of the plaintiffs were for several years in undisturbed possession of the said land and that thereafter the plaintiffs have continued and are still in possession of the land aforesaid. What was disputed was the allegation by the defendants that the land aforesaid formed part of the Ojora Chieftaincy family land; that the same was granted to the plaintiffs’ ancestor, one Pereira-Sheteolu, under native law and custom by the Ojora Chieftaincy family whereby the plaintiffs became and are customary tenants of the Ojora Chieftaincy family. There was no allegation that tribute was payable or ever paid by the plaintiffs.

Thus when the case came up for hearing the triable issues in controversy on the pleadings requiring decision were:-

“(1) Was the land, the subject-matter of the action, part of the land of the Ojora Chieftaincy family, and if so, was it ever at any time or at what time granted under native law and custom to Pereira-Sheteolu, the ancestor of the plaintiffs whereby the latter became customary tenants of the Ojora Chieftaincy family liable to incur the incident of forfeiture Or was it always the property of Pereira-Sheteolu and his family

(2) In the event the land was originally the property of the Ojora Chieftaincy family, were the equitable defences of long possession, laches and stale claim available to the plaintiffs so as to defeat the defendants’ title as claimed in their counter-claim

On that basis the case proceeded to trial. The learned trial Judge heard evidence on the issues in controversy. Thereafter he considered the evidence in the whole case. He found the evidence in support of the defendants’ case tenuous and rejected it. He refused to grant the declaration of title and to order forfeiture sought by the defendants in their counter-claim, which he dismissed. He accepted the plaintiffs’ case and held that on the evidence the plaintiffs had exercised maximum acts of ownership in and over the land, the subject-matter in dispute. He laid emphasis on the Crown Grant of 1871 made to Pereira-Sheteolu and other acts of possession. He appeared in his judgment to have drawn a great deal of assistance from the unreported judgment of the West African Court of Appeal – WACA 2886 – Rufus Adekunle Wright v. Ahmadiya Movement-In-Islam & Anor. delivered on 7th May, 1949.

In connection with the exercise of acts of ownership, the learned trial Judge said:-

“There is evidence of undisturbed possession for the whole period of 87 years; making a compass survey of the land in 1932; action taken in court in Suit No. 20 of 1930 when there was a dispute among the plaintiffs’ family as a result of which the court ordered partition and sale of portion of the disputed land; Public Notices of the Sale (Exhibit “D”) were posted in public places, and the sale was actually held as testified to by a 77 year old eye-witness, Eugene Ade Pereira whose, evidence I believe in its entirety; members of the public bought from the sale and the descendant of at least one such purchaser who has been in possession continuously since his father died gave evidence and tendered his father’s Certificate of Purchase. All these acts constitute strong proof of exercise of ownership in favour of the plaintiffs as against the defendants.”

He thereupon entered judgment for the plaintiffs with costs and granted them a declaration of title as already set out above.

The defendants have now appealed against the Judgment. In all, 10 grounds of appeal were filed but at the hearing, Chief Williams, learned Counsel for the appellants, from whom we derived considerable assistance, compressed them into 4 main grounds which can conveniently be considered together. The grounds were expressed as propositions as follows:-

“1. On the evidence before the court; the learned trial Judge should have found that the defendants were the original owners of the land in dispute. Therefore, he erred in law in not so finding.

2. Alternatively, there not having been any specific finding by the learned trial Judge that the plaintiffs were the first settlers on the land in dispute, then this court should set aside the judgment which was entered for the plaintiffs since in the absence of such finding, the plaintiffs have failed to discharge the onus on them of establishing the ownership of the land.
3. On the evidence before the court, the learned trial Judge should have found that the plaintiffs were customary tenants of the defendants and in failing to so find, the learned trial Judge erred in law. And
4. The doctrine of long possession, laches and stale claim avail the plaintiffs nothing since they were claiming a declaration of title to the land in dispute and were not defending their title thereto.

In arguing these grounds, learned Counsel laid great stress on the allegations contained in the pleadings filed in the case and the evidence in support thereof led by both sides. He pointed out that both sides had based their claim to the land in dispute on ownership. In this connection he specifically drew the court’s attention to paragraphs 5 to 8 of the plaintiffs’ statement of claim and paragraphs 4 to 8 of the appellants’ statement of defence and counter-claim. He vigorously attacked the evidence given by the plaintiffs which was accepted by the learned trial Judge and upon which the judgment of the High Court was based. For the better appreciation of the submissions of learned Counsel in relation to the cases put forward by both the plaintiffs and the defendants before the learned trial Judge, we reproduce hereunder paragraphs 5 to 8 of the statement of claim and paragraphs 4 to 8 of the statement of defence and counter-claim referred to by learned Counsel.

Paragraphs 5 -8 of the statement of claim are in the following terms:-

“5. The said land originally belonged to one Pereira-Sheteolu otherwise known as Benedicto Florencio Pereira who settled on the land several years ago with his wife and family.

6. In or around the year 1871 (95 years ago) when Government was investigating the claims of land owners in Iganmu area it was the said Sheteolu Pereira who put forward his claim thereto and the same was confirmed by a Crown Grant issued to him covering the said land.

7.The Crown Grant was dated 23rd August, 1871, and registered as No. 392 of the Register of Crown Grants, Lagos.

8.From the time of his settling on the land up till the time of his death in 1895 (71 years ago) the said Sheteolu, Pereira was the owner in effective occupation, cultivating extensively rice, cassava, cashew trees, kola nuts, etc., without interruption from anyone.”

Paragraphs 4-8 of the statement of defence and counter-claim are as follows:-

“4. The defendants avers that the land in dispute which is described in paragraph 4 of the statement of claim is a portion of a vast area of land which was vested by native law and custom in the Ojora Chieftaincy family from time immemorial.

5. The defendants aver that by native law and custom all lands in Lagos were vested in Idejo Chiefs who were owners of the areas vested in each of such Chiefs in trust for the members of the Chieftaincy family concerned. The land in dispute is a portion of land in Lagos so vested in the Ojora Chieftaincy family.
6. The defendants aver that paragraph 5 of the statement of claim cannot possibly be true as no land in any part of Lagos was ever vested in any individual “originally” and every individual who owned land or interest in land acquired title to such land or interest in land by grant from an Idejo Chief.
7. The defendants aver that the land in dispute was granted by native law and custom to one Sheteolu as customary tenant of the Ojora Chieftaincy Family.

8.Sheteolu to whom the land in dispute was so granted farmed the land in dispute and founded Sheteolu village on the said land. The plaintiffs are descendants of the said Sheteolu.”

While it is true, as submitted by learned Counsel, that from the above pleadings, both the plaintiffs and the defendants had based their respective claims to the land in dispute on ownership, it is also important to note particularly that paragraphs 7 and 8 of the defendants’ statement of defence and counter-claim carried positive averments that the plaintiffs’ ancestor obtained the land aforesaid by a grant made to him under native law and custom by the defendants’ ancestor.

In his interesting and impressive submissions, learned Counsel contended that by native law and custom, there is a presumption against original individual ownership of land in Lagos because all lands in Lagos were originally vested in Idejo Chiefs who were owners of their respective areas in trust for the members of their respective chieftaincy family. In support of this proposition, learned counsel cited and relied on a number of familiar cases and in particular on Oduntan Onisiwo v. The Attorney-General 2 NLR 79. which was decided by the Supreme Court of the Colony of Lagos in 1912 and in which Chief Justice Osborne laid down at page 86 that in his opinion, the effect of the cession of Lagos in 1861 was that “the ownership rights of private land owners including the families of the Idejos, were left entirely unimpaired, and as freely exercisable after the cession as before.”

The view expressed above by Chief Justice Osborne, learned counsel rightly pointed out, was subsequently referred to with approval by the Privy Council in Amodu Tijani v. The Secretary, Southern Provinces (1915) 3 NLR 24. Eshugbayi Chief Oloto v. Dauda 1 NLR. 57 was then cited; and reliance was placed on a passage in the judgment by Smith, J. in which the latter had said at page 60:-

“The evidence of the other Chiefs and an expert on native law given on behalf of the plaintiff is clear that lands were not in former times given away absolutely even to War Chiefs, and it therefore must require very strong evidence to warrant the court to “come to a conclusion contrary to this custom and such evidence is wanting in this case. The evidence for the respondents preponderates in favour of the findings of the court below, as given under the heading 1 to 5 of the judgment and with which findings I entirely concur. The respondent having shown that he is the owner of the land, is he under the circumstances entitled to possession of the land In answering this question in the affirmative I regret that I have to differ from my learned brother, Mr. Justice Pennington. The appellants have asserted rights inconsistent with those of the respondents. They claimed the ownership of the land, when I cannot help but think that they well knew that their alleged predecessor-in-title was not the absolute owner of the land. They have put the respondent to the trouble, inconvenience and expense of establishing his claim, and refuse to meet him to discuss the question of rent. For these acts native law gives the respondent the right to recover possession and this court is bound to administer that native law unless it is of opinion that it is contrary to natural justice, equity and good conscience. I am of opinion that this law is no more contrary to natural justice, equity and good conscience, than it is in the case of a landlord by English law ejecting a tenant who has disputed his title.”

It was then submitted that the evidence was overwhelming that the defendants were the original owners of the land in dispute and that the learned trial Judge erred in having entered judgment in favour of the plaintiffs. Learned Counsel also contended that the Crown Grant of 1871, having regard to the decision of the Privy Council in Oyekan & Ors. v. Adele (1957) 2 All ER 785, availed the plaintiffs nothing nor would long possession, laches and stale claim since they were claiming title to the land in dispute. Reference was also made to Idowu Inasa & Ors. v. Chief Sakariyawo Oshodi 11 NLR. 10; Mosalowa Thomas v. Preston Holder, 12 WACA. 78; Lawrence Gregorio Da-Costa v. Stella Omowale Ikomi, SC. 733/66; (unreported) delivered by this court on the 20th December, 1968; and Salawu Lawani v. Jimoh Adeniyi, SC. 139/63 (unreported) delivered by this court on 30th October, 1964.

As far as the cases cited above are concerned, suffice it to say that this court respectfully agrees with the principles laid down by them, though as Mr. Cole, learned Counsel for the plaintiffs, rightly in our view, pointed out, individual ownership of land can exist in Lagos as was shown in Oyekan & Ors. v. Adele (supra) when Lord Denning said at p. 790:

“Their Lordships are aware that in several parts of Lagos the native law has been superseded by English conceptions of individual ownership.”

We were not, however, satisfied that they affect the issues for decision by this court in this appeal.

It seems to us that the issues for determination by the learned trial Judge both on the pleadings and on the evidence before him were simple straight issues of fact. Learned Counsel, in his submissions, would appear to have overlooked the fact that this was a case in which both the plaintiffs and the defendants were claiming declarations of title to the land in dispute so that both the plaintiffs and the defendants had each assumed the burden of satisfying the court either by conclusive traditional evidence or by evidence of the exercise of maximum acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are exclusive owners of the land in dispute; or by both such traditional evidence and evidence of the exercise of acts of ownership; and the case has to be decided on the balance of probabilities. Furthermore, the defendants appeared to have pitched the onus of proof upon them rather high in view of their allegation that the land in dispute was granted to the plaintiffs’ ancestor under native law and custom by their ancestors. It was therefore their duty to prove such grant by positive evidence sufficient to overcome the equitable defences of long continuous possession, laches and stale claim.

Now what was the evidence produced by either side in substantiation of their case The plaintiffs called four witnesses among whom were their two principal representatives on the writ of summons. For the appellants, none of the defendants, on record, gave evidence although seven witnesses testified for them. The testimony of the plaintiffs was in line with the averments in their statement of claim to the effect that the land in dispute originally belonged to their ancestor, Pereira-Sheteolu, who was the first person to settle thereon; that he with his family settled on the land in dispute and founded the village thereon named after him as Sheteolu village long before the cession of Lagos in 1861 to the British Crown; that in confirmation of his ownership of the land, Pereira-Sheteolu obtained a Crown Grant thereof in 1871 of which was registered as No. 392 at page 392 in Vol. 7 of the Register of Crown Grant kept at the Registry in Lagos; that on his death, although he was succeeded by one Diulheme Solunbi Pereira, his son, as the head of the family, all his descendants, including the plaintiffs became entitled to and took possession of the same; that in 1930 there was litigation over the land in dispute as a result of which portions of the same were sold by public auction; that as owners they have been farming the land in dispute. They stoutly denied that the land was ever granted to their ancestor by the defendants’ family. They also denied ever having paid tribute to the defendants.

On the other hand, the defendants testified that the land in dispute is, and forms part of, the property of the Ojora Chieftaincy Family. The first witness for the defendants Rabiu Ojora, a fisherman, in his evidence-in-chief, said that he knew the land in dispute at Iganmu. He gave Sheteolu as one of the boundarymen of the Ojora Chieftaincy family land and said that he could not say how Sheteolu originally came to be in possession of the land in dispute. Under cross-examination he repeated:-

“I do not know how Sheteolu got there or when he got there.” (Underlining ours)

The 4th witness for the defendants was Braimoh Akanni Bakare. His evidence concerned the payment of tribute by tenants and the issue of receipts for such payment – evidence which went to no issue since tribute was never pleaded in the statement of defence and counter-claim. He, however, swore that he did not know Sheteolu Village, the subject -matter of the dispute. Both the 5th and the 7th witnesses, Nojimu Bello and Braimoh Bakare Ojora respectively, who followed also swore that they did not know how the ancestor of the plaintiffs came to be in possession of the land in dispute. Indeed the 7th witness, Braimoh Bakare Ojora said that he “first know the land in dispute when I saw a public notice last year issued by the plaintiffs claiming the ownership. The present chief demanded the people who knew the history to come and testify.” That piece of evidence obviously admits that even the Chief of the Ojora Chieftaincy family was seeking far and wide for evidence of the history of the land they were claiming. And unfortunately for the chief, who, incidentally, did not give evidence for the defendants, despite his efforts, none of the witnesses who testified before the learned trial Judge appeared to know much concerning the land they were claiming as part of Ojora Chieftaincy family land granted by them to the plaintiffs.

On that state of the evidence it is difficult to see how the defendants could have succeeded on their defence and much less on their counter-claim for a declaration of title and forfeiture. It is crystal clear that the defendants failed woefully on the evidence in their attempt to prove that the land in dispute originally formed part of the Ojora chieftaincy family land and that the plaintiffs were in possession thereof by reason of a grant made to their predecessor-in-title, Pereira-Sheteolu under native law and custom. With this must be contrasted the straight-forward evidence given by the plaintiffs and their witnesses, namely, that the land in dispute originally belonged to their predecessor-in-title, Pereira-Sheteolu who first settled thereon with his family many years ago and thereon exercised maximum acts of ownership including the founding of a village known as Sheteolu village and the subsequent acquisition of a Crown Grant made to him in 1871, the effect of which was to give him the land “free from all interests and restrictions other than those existing at the date of the grant which were recognised by native law and custom” and, in our view, no such interests or restrictions were, on the evidence established here; so that since thereafter the plaintiffs have been in undisturbed possession of the said land as owners, which in effect, means that they have been from time immemorial and are the owners of the land in dispute. To say the least, on the showing of the defendants, their counter-claim was certainly speculative and bound to fail. It could not have defeated the equitable defences of long possession, laches and stale claim.

In all the circumstances of this case, we are satisfied that the learned trial Judge, having accepted the evidence of the plaintiffs, was justified in granting them the declaration of title to the land in dispute as described by him in his judgment; and in dismissing the defendants’ counter-claim in the High Court of Lagos Suit No. LD/599/65.

This appeal fails. It is dismissed with costs assessed and fixed at 39 guineas. Order accordingly.

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SC.154/1969