Gilbert Akindoyin Awomuti V. Alhaji Jimoh Salami & Ors (1978)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

This appeal is against the decision of Adeoba, J., sitting at Ikeja High Court. In that court, the plaintiffs, who are the respondents in this appeal, had sought –

“1.declaration of title and possession of a plot of land measuring approximately 50 feet by 100 feet situate lying and being at No. 11, Ijero Street, Ikate in Lagos State;

2. general damages of N200 for trespass; and
3. injunction restraining the Defendant, his agents and/or servants from further trespassing on the said land.”

The court ordered pleadings and they were delivered. The case of the plaintiffs, as stated in their Statement of Claim, is that they got a grant of the land in dispute from the Ikate Chieftaincy family. That family, plaintiffs alleged, had been the absolute owners, under native law and custom, from time immemorial, of a vast area of land at Ikate. The Statement of Claim went on-

“6. The Plaintiffs also aver that the said Ikate family put them in possession of the said piece of land and they erected a temporary building on it for a place of worship as a mosque;

7.The Plaintiffs further aver that the Defendant through his servants/agents entered upon the said piece of land and broke down their temporary mosque;

8.The Defendant in spite of several warnings persists in his trespass and claim to the said land.”

The defendant/appellant filed a Statement of Defence which was later, with the leave of the court, amended. The amended Statement of Defence, which pleaded the title of the defendant to the land in dispute, traced that title to the same Ikate family (the source of the plaintiffs’ title). It also pleaded some terms of settlement between the representatives of the immediate grantor of the defendant, Chief Ajao, and the Ikate family. The material paragraphs of the amended Statement of Defence are reproduced hereunder –

“2.The Defendant does not admit or deny paragraph 3 of the statement of claim that the land, the subject matter of this action, is at No. 11 Ijero Street, Ikate but avers that Plot No. 257 in Ajao’s allotment at Ikeja Division was sold to him by Chief Joseph Adediran Ajao.

3.The Defendant avers that the areas of the land sold to him according to the plan attached to the Deed of Conveyance in his favour was 579.95 square yards and not 665.98 square yards according to paragraph 4 of the Statement of Claim.

4.The Defendant further avers that this plot of land No. 257 was a portion of the vast area of land about 67 acres sold to Chief Joseph Adediran Ajao by Kasali Idowu, Bale of Ikate village, Abudu Raimi Apena and Mojidi Idowu for themselves and on behalf of Ikate family comprising Aiyerun family, Gbadamosi Idowu family and Owuremi by virtue of a Deed of Conveyance dated 15th March, 1956 and registered as No. 46 at page 46 in Volume 145 of the Federal Lands Registry, Ibadan.

5.The Defendant avers that Chief Joseph Adediran Ajao (his vendor) divided this vast area of land into several plots, plot 257 of which he bought from him without any notice of incumbrance or existence of other members of Ikate Chieftaincy Family.

6.The Defendant avers that by a Deed of Conveyance dated 27th March, 1962 and registered as No. 34 at page 34 in Volume 545 of the Land Registry in the office at Ibadan, Chief Joseph Ajao as Beneficial owner sold the said plot of land, plot No. 257 to him for a sum of N600.00 paid between 9/5/61 and 4/8/61.

7.”The Defendant also avers that Chief Joseph Adediran Ajao put him in possession of the said piece of land and he not only put signboard “THIS LAND BELONGS TO OBA G. A. AOMUTI” on the piece of land, but he also fenced the land and several times cultivated it since the year 1962 and has started to erect a building thereon under an approved plan.

8.The Defendants avers, that the Plaintiffs five years after he (The Defendant) had been in uninterrupted possession began to erect mat shed on his land in 1967 which he removed immediately.

9.The sale of the 67 acres of land referred to in paragraph 4 above was ratified as per the Terms of Settlement in Suit No. IK/163/65 between Rabiu Aiyerun and 2 Others v. Kasali Idowu and 6 Ors.”

From the pleadings, it is clear that the parties were agreed on one point, that the radical title to the land in dispute, was in the Ikate Chieftaincy family.

The plaintiffs led evidence which was in line with their pleadings. Jimo Salami, the first plaintiff, said the land originally belonged to the Ikate family and it was conveyed by that family to the plaintiffs on 20th May, 1967, under a Deed of Conveyance registered as No. 50/50/103 in Ibadan. One of the signatories to that conveyance, Raimi Apena, was the only plaintiffs’ witness, apart from the plaintiffs themselves. His evidence was to the effect that the Ikate family, apart from executing a deed of conveyance in favour of the plaintiffs, took them to the land and put them in possession. As regards the land sold to Ajao, the immediate predecessor in title of the defendant, witness said –

“We sold a piece of land to Ajao in 1956, but the land is not around the area where the land in dispute is.”

Under cross-examination by learned counsel for the defendant, the witness told the court that his family sold only 10 acres to Ajao and he, the witness, was a signatory to the deed of conveyance to Ajao.

The evidence led by the defendant was also in consonance with his pleadings. He gave evidence as to how he bought the land in dispute from Ajao who gave him a deed of conveyance. With regard to Ajao’s title to the land he called one Akintola Akinyele who gave evidence that the Ikate family sold 67 acres to Ajao. The land in dispute was alleged to be part of this 67 acres.

Now, the transaction in regard thereto was covered by a deed of conveyance, Exhibit “E”. As Mr. Sogbesan, learned counsel for the defendant/appellant, has, during the course of his argument in this appeal, conceded that the exhibit could not be relied upon as a valid source of title to Ajao we would, at this stage, refer to the remarks of the learned trial judge on the exhibit. He observed that though the deed of conveyance was executed on 15th March, 1956, the plan attached to it was countersigned by the Director of Surveys on 13th July, 1956. He concluded, and we agree with him, that “this shows clearly that at the time of the execution of Exhibit “E”, the plan (if any) attached to it cannot be the plan now attached to the certified true copy of the deed”.

In any event, as Mr. Sogbesan also rightly conceded, that plan, not having been countersigned by the Director of Surveys at the time of the registration of the deed (the deed was submitted for registration on 8th May, 1956 whereas the plan was countersigned on 13th July, 1956), was, as the law stood then, inadmissible. See Idowu Alashe and Ors. v. Sanya Olori Ilu and Ors. 1964 1 All NLR.

In our view, the deed of conveyance is worthless. Apart from referring to the inadmissible plan, there is no reference to any feature on the land by means of which the land would have been identified with the deed of conveyance.

The learned trial Judge granted the declaration and injunction sought and awarded damages for trespass. He considered the issue to be determined as one of finding out which of the two parties to the dispute had a better title.

Apart from Exhibit “E” he examined the terms of settlement (Exhibit “F”) which the defendant relied upon as ratifying Ajao’s title to the land specified in the plan attached to Exhibit “E”.

What led to those terms of settlement was that members of the Ikate Chieftaincy Family had, sometime in 1971, taken an action against the representatives of Ajao (Ajao died on 21st June, 1962), seeking an order that the deed of conveyance (Exhibit “E”) made to Ajao be declared void partly on the ground “of the fraud on the part of the said Ajao as regards the area sold, surveyed and conveyed.” This matter was settled out of court. Ajao paid N10,000 to the family and the court gave “judgment by consent as per the terms of settlement”. The relevant portions of the terms are as follows –

In respect of the 67 acres of land on the plan attached to Deed of Conveyance dated 15/3/56 and registered as No. 46/46/145 of the Lands Registry at Ibadan, Nigeria, it is settled.

(a)that all tenants and purchasers from Ikate Chieftaincy Family represented by the Plaintiffs who have actually erected buildings on parcels of land contained in the acres on or before 31st December 1962, shall have quiet possession and enjoyment of the same, and the family shall be entitled to collect rents from such leases or convey the freehold to them and

(b) that the four boundary pillars on the corners of the land shown on the Plan No. A. S. A./133/56 attached to the Deed of Conveyance referred to in 2(a) above should be re-established on the land before the execution of this settlement by a surveyor agreed by both parties who should pay the surveyor’s fees in equal shares.”

The consent judgment was given on 16th November, 1967.

The defendant, who was dissatisfied with the decision of the learned Judge has appealed to this court relying on five grounds of appeal. Mr. Debo Akande, learned counsel for the respondent took a preliminary objection to the first ground of appeal which complains of the right of the plaintiffs to sue in a representative capacity. Paragraphs 1 & 2 of the statement of claim have averred this capacity as follows –

“1.The Plaintiffs are suing on behalf of themselves and of the other members of the Moboluwaduro Mosque, Ikate.

2.The Plaintiffs are the accredited representatives and principal members of the Moboluwaduro Mosque, Ikate.”

These paragraphs were specifically admitted by the defendant in his amended statement of defence and this being the case, we took the view that the ground of appeal could not stay and it was struck out.

The remaining grounds of appeal, which Mr. Sogbesan, learned counsel for the appellant, took together, mainly complain against the award of the declaration of title to the plaintiffs. The defendant, the grounds claim, has title to the same land, through Ajao. Ajao’s title had been ratified by some terms of settlement between his representatives and the Ikate family. Mr. Sogbesan’s main contention was that declaration, is always at the discretion of the court, and as Exhibit E and the terms of settlement, Exhibit F, shows that the defendant might have title to the land in dispute qua Ajao, there must be a doubt created as to the title of the plaintiffs to the land, and the court should not have exercised its discretion in granting the declaration sought.

As regards the issues of trespass and injunction, it was Mr. Sogbesan’s submission that if title was not granted, then the finding on trespass and injunction was wrong. Finally, learned counsel urged that the evidence of possession given by the defendant should have been preferred to that of the plaintiffs.

We called upon Mr. Debo Akande to address only on the issue of the exercise, by the learned trial Judge, of his discretion to grant declaration of title in this case, in view of the terms of settlement between the Ikate Chieftaincy family and Chief Ajao’s representatives. Mr. Akande submitted that it was the case of the defendant that he had title to the land in dispute and the onus was on him to prove that assertion. Neither the deed of conveyance nor the terms of settlement aforesaid amount to such proof.

It is true that the remedy of declaration of title to land, being a matter for the discretion of the court, should, in the words of Lord Sterndale, M. R. in Gray v. Spyer 1922 Ch. 22 at p. 27, “be properly watched”. The discretion should only be exercised judicially. The question, however, as Lord Kilmuir L.C. said, in Vine v. National Dock Labour Board 1957 AC 488 at p. 500 “must be a real and not a theoretical question.” The person raising it must have a real interest to raise.

Mr. Sogbesan in support of his contention that there must be a doubt about the title granted to the plaintiff in view of Exhibit E (the title deed to Ajao) and Exhibit F (the tems of settlement), drew our attention to the decision of this court in Ogundairo and Ors. v. Okanlawon and Ors. 1963 1 All NLR 358 where Taylor, JSC., (as he then was) delivering the judgment of the court said –

“It has been said that the making of a declaratory order is within the discretion of the trial Judge and this discretion should not be too readily exercised. In a claim for declaration of title to land if the Defendant is able to adduce evidence, oral or documentary, which has the effect of discrediting the Plaintiffs evidence, such a declaration should be refused.”

In that case, the defendants had shown by the judgments that they had been declared the owners of the parts of the land in dispute. That, no doubt, amounts to a discredit of the plaintiffs’ claim that he had title to all the land in dispute. What we have in the instant case however is this:

1. The plaintiffs got a grant from the Ikate Chieftaincy Family of the land in dispute and a conveyance was made out to him on 20th May, 1967. (Exhibit A)
2. A member of the Ikate Chieftaincy Family, and signatory to Exhibit A, gave evidence and said that the family took the plaintiffs to the land after the grant and put them in possession.
3. Ajao, the immediate predecessor in title of the defendant, claimed to have bought over 67 acres from the same Ikate Chieftaincy Family on 15th March, 1956 which area, he claimed included the land in dispute.
4. For his title, Ajao relied on Exhibit E – a document which is worthless, and could not be relied upon as having granted him title to the area he claimed, or any area at all.
5. On 14th November, 1967, six months after the execution of Exhibit A on behalf of the plaintiffs, Exhibit F, (the terms of settlement between the Ikate Chieftaincy Family and representatives of Ajao) was executed. The plaintiffs were not party to Exhibit F.

There is no doubt that in a claim for declaration of title the onus lies on the plaintiff to prove his title to the land and he succeeds on the strength of his own case. However, where the land in dispute has been accepted by both the plaintiff and the defendant as originally family land, and either party claims title to that land through that family, the plaintiff only has to discharge the onus of proof of title in him and the onus shifts to the defendant, who has also claimed title to the land. The onus is on that defendant to prove his title. Where the defendant fails to discharge that onus, the plaintiff, who has discharged the onus on him, succeeds – see Michael v. Oyegbade 1967 NMLR 136, applying the decision of the West African Court of Appeal in Udeakpu Eze v. Samuel Igiliegbe and Ors 14 WACA 61. In the former case, Lewis, JSC., delivering the judgment of the Supreme Court, said that whilst the statement, that the onus lies on the plaintiff, in a claim for declaration of title, to prove his title is correct in law generally, the statement – “must, however, be modified where the dispute involved what was accepted by both sides as originally family land. Then when a person claims to be exclusively entitled to family property, the onus is on him to prove it …..”

Where the defendant is able to discredit by evidence, oral or documentary, the evidence of the plaintiff, then the claim of the plaintiff to declaration will be dismissed – Ogundairo & Ors. v. Okanlawon and Ors. (supra). But where there is no such discredit of plaintiff’s case, his claim will succeed.

What the defendant in this case had relied upon, to discharge the onus that shifted on him were Exhibits “E” and “F”. Exhibit “E” could not provide evidence of title to any land as the plan to which the deed refer was inadmissible. Exhibit “F” is no proof of title either. It is obvious on the face of the exhibit that –

1. the plaintiff was not a party to its execution;
2. it was executed after a valid title has been given to the plaintiff;
3. it is, in any event, silent as regards people, like the plaintiffs, who have valid conveyance before its execution; and
4. it talks of 67 acres, while the plan attached to Exhibit “E” comprises 67.96 acres and it could not be certain whether the land in dispute is within the remaining 96 acre.

We think the learned trial Judge was perfectly right in holding that “the defendant has not been able to trace satisfactorily his title to the Ikate Chieftaincy Family” and that “the terms of settlement, Exhibit “F”, cannot avail the defendants.”

In our view, the learned Judge was right in his award of declaration of title to the plaintiffs. The other submissions of Mr. Sogbesan, with regard to trespass and injunction, could only be sustained if the plaintiffs were not entitled to the declaration sought.

The appeal fails therefore, and it is dismissed with N140 costs to the respondents.

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Other Citation: (1978) LCN/ 2081(SC)