Daniel Bassil & Anor V. Chief Lasisi Fajebe & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C

By the time this matter reached this court the main question has been narrowed down to a short one; namely, whether judgment entered for the respondents on their claim for damages for trespass and injunction can be correct in the face of undisputed evidence that the land in dispute was not part of the land conveyed to their predecessor in title by an instrument registered as No. 43 at page 43 in volume 1615 of the Register of Deeds kept in the Lands Registry, Lagos.

The respondents who were plaintiffs in the High Court of Lagos State claimed from the appellants, who were defendants and counter-claimants in that suit, damages for trespass and injunction. Their case was that the land in dispute which was “more particularly and more precisely shown and delineated on the plan accompanying an indenture of Conveyance dated the 20th day of December, 1977, and registered No.8 at page 8 in volume 1674 of the Register of Deeds kept in the Lands Registry office in Lagos and thereon edged RED.”, was part of a large tract of land originally belonging to one Aina Ogundipe, one-time Baale of Ewu and now represented by the families of Olukotun and Ajamogun of Ewu in the District of Ikeja. The said Aina Ogundipe, it was alleged, sold lands of which the land now in dispute was a portion, to one Chief Abraham Akinola as far back as 18th July 1925. The land was “later duly conveyed to him for an estate in fee simple absolute and in possession”. Abraham Akinola, in turn, sometime in 1965 sold portion of the land to the 1st respondent and conveyed it to him by the instrument registered as 8/8/1674 and dated 20th December, 1977. The respondents further alleged that their root of title was not a conveyance registered as No. 43 at page 43 in volume 1615 of the Register of Deeds kept in the Lands Registry Lagos (“Exhibit K”) but was sold according to Yoruba native law and custom by Aina Ogundipe to Abraham Akinola as borne out by purchase receipt dated the 18th of July, 1925. The respondents averred in their pleadings possession of the land in dispute by Akinola since 1925 and by 1st respondent from 1965 until 1977 when 2nd respondent came into joint possession of the land with him on 1st respondent’s invitation. Between November and December 1977 the 1st defendant broke and entered a portion of the land. Hence this action.

The appellants defended the action and raised a counter-claim. The 1st appellant was a managing director of the 2nd appellant. He was sued as having physically entered the land. The 2nd appellant was the company which claimed title to the land. The joint case of the appellants was that their predecessor in title derived title to the land from Ajamogun, Onilude, Onikun families. 2nd appellant had been in uninterrupted possession of the land since June 1971 until the respondents wrongfully ejected it in October, 1977. They relied on title through Chief T. A. Doherty who had leased the land to the 2nd appellant. Chief Doherty himself had derived title to land as to one part by virtue of a Deed of Exchange dated 1st August, 1967 whereby Messrs. Cappa and D’ Alberto Ltd. passed title to him in exchange for another land, and as to another part which is the land in dispute by virtue of a deed of conveyance made to him by the three families dated 11th April, 1953. Cappa and D’ Alberto Ltd., itself had derived title from one Mr. A. S. O. Coker who had purchased the land from the three families and had it conveyed to him by a deed of conveyance dated 17th December, 1951. It was averred that Coker, Cappa and D’ Alberto and Doherty had severally been in continuous and undisturbed possession of the land they bought as was the 2nd appellant of the land in dispute until it was ejected by the respondents.

Balogun, J., who heard the case, in a rather lengthy judgment covering 57 pages, entered judgment for the respondents and dismissed the counterclaim. Notwithstanding the length of the judgment, it is not difficult to summarise the grounds of the decision which cover only 9 pages or so (from pages 254 – 263) of the 57 pages of the judgment.

Balogun, J., proceeded on the footing that the respondents have traced their title to the land directly to one whose title to ownership had been established; that, consequently, the appellants had the burden of showing that their own possession was of such a nature as to oust that of the original owner; and that the appellants and respondents were tracing their root of title to the same family. Having proceeded thus it was inevitable that the trial Judge concluded, as he did, that that family having sold the land to the 1st respondent’s predecessors in title in 1925 the 1st respondent had proved a better title. In the alternative, he held that if he had found that the three families were the owners of the land, he would nevertheless have given judgment for the respondents on the basis of adverse possession of the land by Akinola from 1925.

On the appellants’ appeal to the Court of Appeal, that court proceeded, as the trial judge did, on the footing that both parties claimed from the same root of title and that the party who proved a better title to the land in dispute would succeed. Babalakin, JCA., (as he then was) who gave the leading judgment accorded respect to the view of the trial Judge that “the land in dispute was sold as far back as 1925 to one Akinola, the predecessor in title of the 1st respondent.” Being of the opinion that the findings made by the trial Judge settled the question of the identity of the land in dispute and the facts of possession of the respondents and their predecessors in title he dismissed the appeal of the appellants. Awogu, JCA, and Kalgo, JCA (as he then was) agreed.

Counsel for the appellants on this appeal argued that in several instances that Court of Appeal wrongly affirmed the findings of fact made by the trial Judge namely; that the land in dispute was part of the land sold by Ogundipe to Akinola and that there was an effective sale of family land in 1925. Mr. Molajo, SAN, in the respondent’s brief succinctly identified the two main issues in this appeal as follows:

“1. Whether the land in dispute falls within the parcel of land which was sold by Aina Ogundipe (Baale of Ewu) to the plaintiff’s predecessor in title, Chief Abraham Akinola in 1925 under Yoruba native law and custom.

2. If the answer to issue No.1 is in the affirmative, whether the said sale was valid and effective.”

These were not the only issues, but I am content to start with them since in my opinion they are the issues that first have to be determined for a just resolution of this appeal.

In the leading judgment of the Court of Appeal that court having noted that,

”This appeal is essentially on facts and the learned judge understood what it is all about”, proceeded to hold that the trial Judge resolved the discrepancies about the survey plans. After quoting several findings of fact made by the trial Judge, the Court of Appeal said:

“Thus in the above findings the question of identity of the land in dispute was ascertained and settled; facts of possession of the respondents and their predecessors in title were upheld and that of the appellants were rejected.”

It also held: