E. O. Fasoro & Anor V. Olalere A. Beyioku & Ors (1988)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C. 

The Appellants who were the Plaintiffs in the Court of first instance sued the Defendants now Respondents claiming:-

“(a) Declaration of title to that piece or parcel of land lying, situate and being at Mile 6, Old Ife Road, Ibadan.

(b) N500.00 damages to each of the plaintiffs, for trespass committed by the Defendants since May, 1975.

(c) Injunction restraining the Defendants, their servants and/or agents from committing further trespass on the land”.

Pleadings were ordered, filed and exchanged. From paragraphs 3 and 4 of the Amended Statement of Claim, it is clear that “the land in dispute” is not just one parcel of land but two distinct parcels bought on different dates and conveyed to each Plaintiff again on different dates.

The area sold to the 1st Plaintiff as shown on the plan tendered as Ex. A is Area marked “B” verged Red and the parcel claimed by the 2nd Plaintiff is Area marked “A” verged Blue. The Root of Title pleaded by each Plaintiff was Sale by the Olayalo Family – the traditional owners of the land.

This sale was in each case covered by a Conveyance in English form as pleaded in paragraphs 10 and 11 of the Amended Statement of Claim. In addition to the Sale and Conveyance pleaded, the 1st Plaintiff pleaded in paragraph 14(a) of the Statement of Claim payment of “compensation for his crops on the land in dispute” by the Ministry of Works etc. during the construction of the Agodi Water Supply pipe-line. And in paragraph 14(c) both Plaintiffs pleaded that they “together with Chief D.E.A. Oguntoye who owned A.I an adjacent piece of land, laid out the land in dispute and named it Ore-meta Layout …….” Ex. F.

The Defendants denied in paragraph 30 of their Statement of Defence that the land in dispute ever belonged to the Plaintiffs’ vendors and in paragraph 31 the Defendants pleaded that the Plaintiffs “have never at any time taken possession either physical or otherwise of the land in dispute”.

The case of the Defendants as pleaded in paragraph 5 of their Statement of Defence was that “the entire area verged Red on plan No. MAY.228/77′ (tendered as Ex. K) “was granted to Beyioku Iseke, the great ancestor of the 1st, 3rd, 4th and 5th defendants by Efun, one of the great Ibadan warriors”. The area the plaintiffs are claiming is verged green in Ex. K. After this customary grant by Efun after the Ijaiye war, the Defendants’ ancestors and predecessors in-title went into effective possession as pleaded in paragraph 9 of the Statement of Defence. In paragraphs 10 to 19, the Defendants pleaded their geneology and descent from Beyioku.

From the pleadings of both sides, the following will emerge:-

1. There is no dispute about the land in dispute. It is common ground that the area verged Red and Blue in Ex. A is the area the Plaintiffs are claiming. The same area is verged green in Defendants’

plan Ex. K and designated “Area in dispute”.

2. The vital issue arising from the pleadings of the parties is the ownership of the area in dispute.
3. Were the Plaintiffs’ vendors the owners of the parcels of land they purported to convey to the Plaintiffs
4. Was there a customary grant of the land in dispute by Efun to Beyioku the ancestors of the Defendants
5. Did the Plaintiffs ever go into possession of the land sold to them by their vendors
6. Have the Defendants and their predecessor in-title remained in effective possession of the land in dispute after the customary grant by Efun as pleaded by them

These were the live issues arising from the pleadings of the parties that the Courts below had to decide.

After due hearing, the learned trial judge Ige, J. found and held as follows:-

1. On examination of the traditional history given in evidence by both alleged original owners as to how they came to own the land in dispute, none of them is really conclusive (p.95 of the record & p.96).
2. “I prefer the evidence of the 3rd Plaintiffs’ witness, the 4th, the 5th, the 7th that at one time or the other the Plaintiffs had 2nd Defendant as their caretaker for protecting their interest on the land in dispute” (see p.94 of the record).
3. “I am of the firm belief that the second Defendant received compensation for his own crops which were damaged during the Asejire Dam construction”
4. “There is no doubt that the Beyioku family have land at Akoka area as can be seen in Ex. K But whether the land granted to Beyioku by Efun extended to the land in dispute is an issue to be resolved by the Court by reference to recent facts” (see pp. 96/97 of the record).
5. The Plaintiffs’ vendors are definitely members of Olayalo family.
6. The Plaintiffs’ and their vendors had been undisturbed in their possession of the land in dispute one after the other until 1975 when the Defendants came to the land to drive them away.
7. The Plaintiffs have exercised several acts of ownership on the land such as making a layout and claiming compensation from Government for crops destroyed on the land (see p.97).
8. “I do not believe the evidence of the Defendants’ grantees who have been farming on the land that they had been farming on the land in dispute and yet they did not hear of Olayalo’s family or the Plaintiffs’ layout” (p.97 of the record).
9. “I believe and find as a fact that the 3rd Plaintiff witness’s family had title in the land in dispute which they rightly passed on to the two Plaintiffs in this case by the four different Deeds of Conveyance, Exhibits B, C, D and between 1958 and 1977. the fact that the Deeds of Conveyance were not executed in Olayalo’s family name is not in issue in this case”.
10. “In this case I hold that the Plaintiffs have established their actual possession of the land in dispute and the Defendants having gone on the land in 1975 and driven away the first Plaintiff had trespassed on Plaintiffs’ land” p.99 of the record (the italics are mine and I will refer to that later on in this judgment). (The italics of No. 9 above are mine to show that trial judge found that title resided in the Olayalo’s family).

Having believed the Plaintiffs and their witnesses and after the findings set out above, the learned trial judge gave judgment as follows:-

“1. The two plaintiffs are the persons entitled to apply for certificates of occupancy for the land in dispute which is edged Red and Blue respectively in plan No.AB.10365.

2. N500.00 damages jointly and severally against the first, second, third and fifth Defendants.
3. An injunction is hereby granted to restrain the first, second, third and fifth Defendants from going on the said land edged Red and Blue respectively in plan No. AB.10365”.

The Plaintiffs won in the Court of first instance and the Defendants lost.

Dissatisfied and aggrieved, the Defendants then appealed to the Court of Appeal Ibadan Division, coram Maidama, Dosunmu and Onu, JJ.C.A, In a lead judgment by Dosunmu, J.C.A. to which Maidama and Onu, JJ.C.A. concurred, Dosunmu, J.C.A. allowed the Defendants’ appeal, set aside the judgment of the trial Court, and in its place dismissed all the claims of the Plaintiffs with N200.00 costs. I will not, at this stage, go into any detailed consideration of the judgment of the Court of Appeal, as it is that judgment that is now under fire in this appeal.

The Plaintiffs dissatisfied and aggrieved have now appealed to the Supreme Court on 5 grounds of Errors in Law and Misdirections both on the facts and on the law. Either side filed and relied on its Brief of Argument. The Appellants formulated one solitary Question For Determination viz:-

“Whether from the oral and documentary evidence from the Plaintiffs/Appellants in support of their various acts of ownership it can be said that the acts of ownership spotlighted by the learned trial judge are not positive and of sufficient length of time to warrant the inference of exclusive ownership as to support the reliefs granted in favour of the (sic) respondent”.

The Defendants/Respondents’ Brief “blindly” followed and agreed with the Question formulated in the Appellants’ Brief as the Question For Determination. A Question for Determination in any appeal has to be referrable to:-

(i) The case of the parties as pleaded;

(ii) The judgment appealed against; and

(iii) The grounds on which that judgment is being attacked – namely the grounds of appeal.

The Plaintiffs/Appellants in paragraphs 6, 7, 8 and 10 of their Amended Statement of Claim pleaded that the radical title to the land in dispute resided in the Olayalo family. It was thus incumbent on them to trace the devolution of that title from the radical owners – the Olayalo family to the Plaintiffs/Appellants, especially as the Defendants in paragraph 30 of their Amended Statement of Defence made an issue of the Plaintiffs’ vendors’ title viz:-

“30. The area in dispute does not belong to any of the Plaintiffs’ vendors and they have no right to sell to anybody””.

One cannot really talk of acts of ownership without first establishing that ownership. Where a party’s root of title is pleaded as, say – a grant, or a sale or conquest etc. that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership. In other words acts of ownership are done because of, and in pursuance to the ownership. Ownership form the quo warranto of these acts as it gives legality to acts which would have otherwise been acts of trespass.

Learned counsel for the Appellants cited and relied heavily on Ekpo v. Ita 11 N.L.R. 68; Lawal v. Ijale (1967) N.M.L.R. 155 at 157 and Idundun v. Okumagba (1976). In Idundun’s case supra the Supreme Court made a definite statement with regard to the various way of proving ownership of a land in dispute. At p.210 of the Report, this Court stated the law as follows:-

“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings of the learned trial judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them” (the italics are mine to emphasise that each way is separate and distinct).

It is my humble view that each of the five ways enumerated in Idundun’s case supra will have to stand or fall on its merits and does not necessarily need, in the case of failure to prove the way pleaded, the support of another way not directly pleaded as the root of title. The emphasis is on “within the ambit of any of them”. When therefore a Plaintiff pleads Sale and Conveyance as his root of title, he either succeeds in proving the Sale or Conveyance or he fails. Where he succeeds, he wins and where he fails his case ought to be dismissed: see Akerele v. Atunrase (1969) 1 All N.L.R. 201. Having thus failed to prove the title he pleaded, it will be wrong of him to turn round to rely on acts of ownership or acts of possession, which acts are in the nature of things derivable from and rooted in the radical title pleaded. As I observed in Chief Oyelakin Balogun & ors. v. Oladosu Akanji & anor SC. 94/1986 delivered on 12th February, 1988 [(1988) 1 N.W.L.R. (Part 70) 301]:-

“In this case on appeal both the pleadings and the evidence abundantly show that the Plaintiffs relied primarily on their Traditional Evidence and not on their Acts of Possession which were purely consequential, secondary and accessory. And accessorium non ducit, sed sequitur suum principle (the accessory does not lead but follows its principal).”

It is in this light that one has to consider the dictum of the Full Court in Ekpo v. Ita supra which has turned out to be one of our most misleading cases.

There is nothing wrong with a Plaintiff pleading his Acts of Possession as his root of title. That is the fourth way of proving ownership of land as enunciated by this Court in Idundun’s case supra at p.211 of the Report. And why not, after all possession is 9/10 of the law and a claimant proffering his possession as his root of title is saying – “I do not know how I got the land, but I have been in effective possession for a long period of time and I now invoke the presumption which Section 145 of the Evidence Act Cap 62 of 1958 makes in my favour.

You now prove that I am not the owner”. In such a case, even before Section 145 of the Evidence Act applies, the onus is on the Plaintiff to prove acts of possession or acts of ownership extending over a sufficient length of time, numerous and positive enough, to warrant the inference that the plaintiffs were exclusive owners. Having done that, the Defendants to rebut the presumption, will then prove that the Plaintiff is not the owner. In such a case again Ekpo v. Ita will apply and if it is thus applied that decision will cease to be our most misleading case.

From my observation above, the real Question For Determination in this appeal appears to be what the Appellants are complaining of in Ground 3 of their Grounds of Appeal at p.145 that:-

“(3) The Court of Appeal misdirected itself on law and in fact when it held that the fact of the execution of the deed of conveyance in the name of (sic) Olayalo family was a relevant issue when the dispute is over which of the two families had better title

Particulars of Error

(i) It is not open to the defendants who are members of another family to rely on any defect in the conveyances made by the family of the plaintiffs’ vendor in favour of their grantee in support of their claim or as an answer to the plaintiffs’ claim.

(ii) Any omission in the conveyance was cured by the oral evidence of the family of the plaintiffs’ vendors as to the authority and capacity of the vendors.

(iii) In addition to and inspite of the conveyance, it was the plaintiffs’ claim that they have been in exclusive possession of the land and there was ample evidence which was believed by the learned trial judge to the effect that the plaintiffs have been in possession since 1958 and exercising various acts of ownership.

(iv)……………….

From the above, the Question to be answered in this appeal appears to be:

“Did the Plaintiffs succeed in proving a valid transfer of the land in dispute from the Olayalo family (in whom, as they pleaded, the radical title resides), to them”

Put in a different way – did Exhs. B, C, D and E transfer a valid legal title from the vendors therein to the Plaintiffs especially as the Defendants had specifically pleaded in their paragraph 30 of their Amended Statement of Defence that the Plaintiffs’ vendors were not the owners of the land they purported to convey to the Plaintiffs and they thus had no right to sell to anybody The learned trial judge adverted to this fact but somehow conveniently brushed it aside by saying that “the fact that the Deeds of Conveyance were not executed in Olayalo’s family name is not in issue in this case”. Of course, it was very much in issue when the Plaintiffs’ vendors’ title and their capacity to sell are both challenged by the Defendants, the onus is on the plaintiffs to establish that title. Also from the Plaintiffs’ own pleadings, radical title was originally vested in the Olayalo family. It was thus their duty to trace the devolution of that title from the Olayalo family to their vendors, otherwise the principle of nemo dat quod non habet will apply. This they did not even plead let alone prove. All the Plaintiffs pleaded in paragraph 10 of their Amended Statement of Claim was that their vendors are all members of Olayalo family. That is not enough. Also in Exs. B, C, D and E the vendors claimed that they “are seised of the hereditaments hereinafter described for an estate in fee simple in possession free from encumbrances”. They sold the land in dispute as their personal land and not for and on behalf of the Olayalo family, the owners thereof. The Plaintiffs’ vendors could not and did not transfer any valid title to the Plaintiffs for as the Defendants challenged they were not the owners and had no right to sell. This is the crux of the whole matter. The Court of Appeal was right in holding that “Exs. B, C, D and E in this appeal do not purport to pass the right, title and interest of Olayalo family” whereas “the evidence of the plaintiffs was clear that it was Olayalo family land which the vendors purported to sell to them by virtue of the conveyances as their own”. The end result is that the Plaintiffs’ vendors had nothing to sell and the Plaintiffs by the purported conveyances got nothing: See Akerele v. Atunrase & ors. (1969) 1 All N.L.R. 201 at p.208.

Now having failed to prove valid title per their conveyances, Exs. B, C, D and E – can the Plaintiffs now fall back on their acts of ownership or possession as suggested in Particular (iii) of their 3rd Ground of Appeal This was the sole Question for Determination formulated by the Plaintiffs/Appellants. The answer is No. The Plaintiffs’ claim stood or fell on establishing a good and valid title derived from the Olayalo family and this they failed to prove. Their possession was therefore that of a trespasser since it is now bereft, and shorn, of that prior ownership which should have provided such possession with the necessary cloak and a valid vestige of legality: Da Costa v. Ikomi (1968) 1 All N.L.R. 394 at p.398: see also Ogbechie & ors v. Onochie & ors. SC. 193/1985 delivered 19th February, 1988 [ (1988) 1 N.W.L.R. (Part 70) 370]. The Plaintiffs could not rely on acts of ownership when they had not proved their ownership of the land.

The Court of Appeal dealing with the conveyances, Exs. B, C, D and E observed at p.131 of the records:-

“Despite holding that the Conveyances passed valid title to the Plaintiffs, the trial judge proceeded further to consider acts of ownership by the plaintiffs under the rule of Ekpo v. Ita 11 N.L.R. 68. This is unnecessary ……….”

I am in complete and total agreement that once radical title has been pleaded and proved, acts of ownership or possession resulting from such title, need no longer be considered for they are then non issues. Conversely where, as in this case, the Court of Appeal rightly held that the Conveyances Exs. B, C, D and E did not transfer valid title to the Plaintiffs – that is to say that the title pleaded had not been proved, there, also it will be unnecessary to consider acts of possession and the dictum in Ekpo v. Ita supra for the acts there become no longer acts of possession but acts of trespass: Da Costa v. Ikomi supra.

I have, on purpose, dwelt at length with acts of ownership and Ekpo v. Ita supra because our trial Court seem to hold tenaciously to the belief that in every land case, for the plaintiff to succeed, the onus lies on him “to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners “. That is not quite correct. Regard should necessarily be had to the pleadings and the root of title pleaded in each particular case (I am not even sure that pleadings were filed in Ekpo v. Ita). Also in Ekpo v. Ita the Full Court made it clear that – “if the evidence of tradition is inconclusive the case must rest on a question of fact”. The decision in Ekpo v. Ita dealing specifically with traditional evidence should be confined to the facts of that case, and that decision, should not be seen as stating a general principle of law binding in every land case.

Another ground that may conveniently be considered next is Ground 5 dealing with possession and trespass. That ground complained that:-

“5. The Court of Appeal misdirected itself in law and on the facts when it held as follows:-

On the claim for trespass and injunction which depended on actual possession, it seems clear that the plaintiffs did not have possession to sustain the claim. In so far as there are conflicting claims on this, it cannot be ascribed to the plaintiffs who failed to show better title”.

In this case both parties claimed ownership of the land in dispute, both also claimed various acts of ownership and possession in and over the land. The case was fought on the assumption that each side is claiming ownership and possession. When such is the case, the law is that he who can prove title is in actual possession and the other is a trespasser. See Jones v. Chapmein (1849) L.J. Ex. 456 at p 460: See also Da Costa v. Ikomi (1968) 1 All N.L.R. 394 at p.398. The Court of Appeal was therefore right in holding that where “there are conflicting claims” to ownership and possession as in this case, effective and exclusive possession needed to establish trespass “cannot be ascribed to the plaintiffs who failed to show better title”.

There is one final point 1 wish to deal with, on the issue of possession.

At p.123 of its judgment the Court of Appeal observed:-

“It does not seem to me that the two acts of ownership spotlighted by the trial judge are positive and of sufficient length of time to warrant the inference of exclusive ownership by the Plaintiffs”.

I must observe that from the presumption in Section 145 of the Evidence Act Cap 62 of 1958, long possession is really a shield rather than a sword, a weapon more of defence than of offence. But having found, and rightly too, that the Plaintiffs’ title based on the Conveyances Exs. B, C, D and E failed, there was no longer any necessity to consider whether the payment of compensation for crops destroyed during the erection of the Asejire Dam construction (which compensation can also be paid to a tenant) and the laying out of the Ore-Meta Layout; (which here was done in conjunction with Chief D.E.A. Ogunleye who is not a party to this case) were sufficient acts of ownership to warrant a declaration of title in favour of the Plaintiffs/Appellants. The question did not arise.

In the final result and for all the reasons given above, this appeal fails and it ought to be dismissed. It is accordingly hereby dismissed. The judgment of the Court of Appeal setting aside the judgment of the trial Court and dismissing all the claims of the Plaintiffs/Appellants is hereby confirmed.

There will be costs of N500.00 against the Plaintiffs/Appellants in favour of the Defendants/Respondents.A. O. OBASEKI, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother. Oputa, J.S.C. I agree with him that the appeal fails and should be dismissed for the reasons so ably set out in the said judgment. Additional and by way of emphasis, I deem it fit to add the following comments.

The writ of summons by which these proceedings were commenced in the High Court of Oyo State was filed at Ibadan on the 4th day of March, 1977. The endorsement on the writ was a claim for:

“(a) Declaration of title to that piece or parcel of land lying, situate and being at mile 6 Old He Road, Ibadan;

(b) N500.00 damages to each of the plaintiffs for trespass committed by the defendants; and

(c) Injunction restraining the defendants, their servants and or agents from committing further trespass on the land.”

When the Appellants filed their amended statement of claim on the 13th day of April, 1978, the Land Use Act 1978 had come into force and the claim for “declaration of title” should have been amended to read a claim for “entitlement to a right of occupancy.” The learned trial judge, Ige, J. complied with the provisions of section 40 of the Act when in delivering judgment on 30/3/79 in favour of the Appellants, she said:

“The two plaintiffs are entitled to apply for certificates of occupancy for the land in dispute which is edged Red and Blue respectively on plan No. AB.10365.”

The express provisions of section 40 of the Act reads:

“Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary in respect of the land as provided in this decree.”

The defendants were not satisfied with the decision of the High Court (Ige, J.). They then appealed against the decision to the Court of Appeal and won. The Court of Appeal reversed the decision of the High Court and entered a judgment dismissing the claims of the plaintiffs with N200.00 costs to the respondents.

The dismissal of the claims made it unnecessary for the Court of Appeal to ascertain whether the claim was for a statutory right of occupancy or customary right of occupancy. Whichever it was, the claim failed, was not made out and was dismissed.

The plaintiffs were not satisfied and hence this appeal. The issue formulated by the appellants for determination reads:

“whether from the oral and documentary evidence from the plaintiffs/appellants in support of their various acts of ownership, it can be said that the acts of ownership spotlighted by the learned trial judge are not positive and of sufficient length of time to warrant the inference of exclusive ownership as to support the reliefs granted in favour of the respondents.”

The respondents’ comment in their brief on this issue for determination is less than critical. It reads:

“The issues that the appellants want the Supreme Court to determine have been set out in their brief of argument.”

One crucial observation I have to make from the pleadings filed in the High Court is that the claim for a declaration of title was not based on long possession and or acts of ownership and possession spreading over a long period. It was based on a sale and conveyance of title to the land from members of Olayalo family to the plaintiffs. See paragraphs 6, 8, 9, 10, and 11 of the statement of claim. Paragraph 10 pleaded conveyance executed in favour of 2nd plaintiff and paragraph 11 pleaded conveyances in favour of 1st plaintiff Exhibits C, D and E. While these paragraphs purport to convey Olayalo’s title to the plaintiffs, the conveyance themselves executed by different members of the Olayalo family conveyed the beneficial title of the vendors in the land. There was no evidence of partition of Olayalo’s land. The contrary was the case. This internal conflict in the plaintiffs’ case was fatal and the Court of Appeal was right in its judgment.

It is also observed that the 2nd plaintiff was absent throughout the proceedings and never testified. His absence is fatal to his case as by paragraph 10 of the statement of claim he pleaded

“In 1958, Afolabi Ayoola, Lamidi Adeagbo and Kolapo Ayoola all members of Olayalo family sold and conveyed the area” A” aforesaid to the 2nd plaintiff. The plaintiff will rely on the deed of conveyance dated 6/8158 and registered as No.4 at page 4 of the Lands Registry.”

In paragraph 6, the plaintiffs pleaded

“The whole land and the land in dispute originally belonged to Olayalo who was an Ibadan warrior and who settled on the land when it was still virgin forest many years ago.”

and in paragraph 7, pleaded:

“Olayalo family who are now in their 5th generation had been in undisturbed possession of the land for very many years and have exercised various acts of ownership on the said land.”

It is therefore clear from the pleading that the origin of the root of title claimed by the plaintiffs is Olayalo family. Since the evidence shows that Olayalo family has not conveyed any title to the plaintiffs, the claim fails.

The plaintiffs did not from the pleading derive title by numerous acts of possession and ownership over a long period and so the issue formulated for determination in this appeal does not derive from the proceedings.

The plaintiffs’ conveyances were from individual members of the Olayalo family who conveyed title as private beneficial owners. It is customary law among the Yorubas that neither the head of the family nor a member of the family can alienate family property as his own private property. See Solomon & Ors. v. Mogaji & Ors. (1982) 11 SC.1. Any such conveyance does not convey family title and is null and void as it cannot convey a title the vendor does not have.

A party cannot formulate an issue for determination in the Court of Appeal which is inconsistent with the issues arising from the pleadings in the court below. There is therefore no merit in this appeal.

For the above reasons and for the reasons set out in the judgment of my learned brother, Oputa, J.S.C., I hereby dismiss this appeal with costs to the respondents fixed at N500.00.S.

KAWU, J.S.C.: I have had a preview in draft of the judgment just delivered by my learned brother, Oputa, J.S.C. and I agree entirely with him that for the reasons stated in the said judgment, which I hereby adopt, this appeal should be, and it is hereby dismissed with N500.00 costs awarded to the respondents.

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SC.160/1985