Joseph Babalola Oni & Ors v. Samuel Arimoro (1973)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS J.S.C.
In suit No. 1/78/68 which was commenced in the Ibadan High Court, the plaintiff, now respondent, against the defendants, now appellants, declaration of title to a piece of land situate at Sabo near Mokola round about in Ibadan.
The claim was dismissed by the High Court. The plaintiff thereupon appealed to the Western State Court of Appeal. That court allowed the appeal, set aside the judgment of the High Court, and entered judgment for the plaintiff in terms of his claim. The defendant has now appealed to this court against that decision.Paragraphs 2 to 5 to the plaintiff’s statement of claim read-
“2. The land in dispute originally belonged to Aragba family of Ayeye, Ibadan aforesaid.
- By a deed of conveyance dated 5th day of February, 1968 and registered as No. 8 at page 8 in Volume 1048 of the Lands Registry in the Office at Ibadan, Lawani Akanbi, Mogaji Aragba family and others for themselves and on behalf of the said Aragba family sold the land in dispute to the plaintiff.
- The defendants, who are squatters on the land in dispute, were duly made aware of the plaintiff’s interest in the said property and by a circular letter dated 21st February, 1968, they were given a month within which to quit and vacate the land.
- All the defendants are still unlawfully in occupation of the property in dispute in spite of facts hereinbefore alleged.”
in their own statement of defence, the defendants admitted that the land in dispute originally belonged to the Aragba family. They denied the other averments. Indeed, the 1st defendant averred in his statement of defence that the land in dispute was sold to him by the Aragba family by virtue of an agreement dated 22nd day of May, 1953 that he immediately went into possession and had been making use of the land and exercising various acts of ownership thereon since 1953 without let or hindrance. In 1954, he put the 3rd and 4th defendants on the land as his tenants and they are still on the land as such tenants. Thirteen years later that is, in 1967, he put his son (2nd defendant) still does on the land. Finally, the 1st defendant averred in paragraph 8 of his statement of defence as follows –
“18. The 1st defendant will contend at the trial that the deed of conveyance referred to in paragraph 3 of the plaintiff’s statement of claim conveyed nothing to the plaintiff, the Aragba family having divested themselves of title to the land purported to have been conveyed thereby.”
In his evidence in support of his claim, the plaintiff admitted that before he bought and paid for the land in February 1968, he saw palmwine sellers, food sellers and a mechanic on the land. When he asked Lawani Akanbi, the Mogaji of the Aragba family, how these people came to be on the land, the Mogaji told him tht he just found the people there but that he allowed them to stay on because they kept the place clean. He (the plaintiff) then asked the mechanic (3rd defendant) and Raimi mechanic (4th defendant) how they came to occupy the land and each of them told him that the Mogaji of the Aragba family gave them permission to use it and that they would quit when required to do so by the family. When he later told them to quit they refused. He produced the conveyance (exhibit B) in support of the sale of the land to him.
Adebayo Alao Ojo Aragba (3rd plaintiff/witness) a member of the Aragba family testified for the plaintiff. He confirmed that the family sold the land to the plaintiff in January, 1968 and that at the time Lawani Akanbi was the Mogaji of the family but that he had since died. His explanation about those found on the land by the plaintiff was as follows-
“There were people using the land in dispute at the time we sold it to the plaintiff but we did not know how they got there, or how long they had been there. We have sold all our lands. The land in dispute was the 1st one we had before we sold it. I was passing by the land in dispute in the last 15 years and have been seeing people using it. They included the 3rd defendant. Our family was not collecting rents from those there and I do not ask how they got there.”
Earlier, this witness had given the following answers to questions put to him under cross-examination.
” I was at Ibadan 15 years ago. I know 1st defendant. I do not know that he bought land from our family 15 years ago. Lawani Akanbi succeeded Mogaji Fehintola in our family. Majaro was Mogaji before Fehintola. I know Lawani Akanbi and Yesufu Adeleke, as also Ladeji Akanmu, Busari Akanji and Madojutola, all members of my family.”
For this part, the 1st defendant testified that he bought the land from the Aragba family in 1953 and paid 70 pounds for it and that Majaro was the Mogaji of the family at the time. The family thereafter put him in possession. He produced the receipt (exhibit E) given to him in respect of the money which he paid for the land. After payment, the family took him to the land and he got it surveyed in 1954. that same year he let out the land to two mechanics (3rd and 4th defendants) and they have been in possession of it ever since. In 1967 he put his son (2nd defendant) on the land to sell spare parts and kerosene there. One of the mechanics (3rd defendant) testified as follows.
“I and the 4th defendant hired the land in dispute from the 1st defendant since 1954 and we are still there. We pay our rents jointly to him every month. No one has ever disturbed us on the land since we have been thee. We built nine workshops on the land in 1954, hired out three of them to others, we allowed the 2nd defendant to use one of them rent free since about five years and we use the remaining five ourselves.”
It is significant that this witness was not cross-examination about the promise of these mechanics to the plaintiff to quit the land whenever they were requested to do so by the Aragba family. Moreover, no evidence was adduced by the plaintiff to show that the Aragba family ever requested them to quit the land.
In support of his claim, the 1st defendant also called another member of the Aragba family. His name is Salami Durojaiye Aragba (1st defendant witness). He confirmed that the family sold the land in dispute to the 1st defendant about 15 years ago for 70 pounds and that the family took the 1st defendant to the land and put him in possession of it. He said their Mogaji at the time of the sale was Majaro. He also said that he had been seeing mechanics on the land for the past 12 years.
Yesufu Adeleke (2nd defendant/witness), another member of the Aragba family, confirmed the testimony of Salami Durojaiye Aragba (1st defendant/witness) about the sale and the fact that the family put the 1st defendant in possession after the sale. In addition, he stated that Mogaji Majaro Fehintola Ajao, Lawani Akanbi and himself executed a document (exhibit E) in favour of the 1st defendant after the sale, and also that Busari Akanji, Ladeji Akanmu, Madojuotla, Salami Moradeyo and Adebayo Alao who were the representatives of the family at the time knew about the sale and approved of it.
In his judgment the learned trial judge referred to paragraph 2 of the document admitted as a purchase receipt (exhibit E), given by the family to the 1st defendant, which reads-
“In consideration of the transfer of the above piece of land, . . . be it known to all men by these presents that we the undersigned transferors Majaro the Mogaji of Ile Aragba, Ayeye, Ibadan; Fehintola Ajao, Lawani Akanbi, and Yesufu Adeleke hereby severally and conjointly transfer the above piece of land to Joseph Babatola Oni aforesaid for which we received the sum of 70 (Seventy pounds) from him and we hereby conjointly agreed to empower him to be using the full right of ownership over the land for himself and his heirs, whereby our authority over the said land is absolutely extinguished and none of our heirs, relatives, assigns and executors shall have the right to claim it in future.”
The learned trial judge then observed as follows-
“It was suggested on the part of the plaintiff that the transaction was not a sale of the land, but the language used in ex. E belies this, and although the other signatories of the document are now dead the evidence of the survivor, Yesufu Adeleke, the 2nd defendant/witness confirmed my view in this respect. The evidence of the 1st defendant and that of his two witnesses who are elderly members of the Aragba family convinced me of the absolute sale of the land in dispute by accredited members of Aragba family with the knowledge and consent of the other members of the 1st defendant. I do not believe the plaintiff’s witness Adebayo Aragba, who gave contrary evidence and I am not surprised that he was the only member of the family to come forward to say so, because he was one of those who purported to sell and convey the same land to the plaintiff when they needed money”.
He then gave his impression regarding the plaintiff’s conveyance as follows-
“There can be little doubt that Lawani Akanbi’s participation in selling and conveying the land to the plaintiff gave a taint of fraud to the transaction, in view of the part he played in exhibit E in 1953, but others like Ladeji Akanmu and Busari Akanji whose names also appeared in exhibit E as having given their consent to the transaction there also took active part in the 1968 transaction.”
The learned trial judge then dismissed the plaintiff’s claim after finding finally as follows-
“On the whole of the evidence before me, I find as a fact that members of the Aragba family through their accredited leaders and representatives sold the land in dispute to the 1st defendant in 1953, put him in possession of the same and that he entered into possession accordingly by himself in 1953 and through the 3rd and 4th defendants from 1954 till the present time. And this inevitably leads to the conclusion that the family had divested themselves since 1953, of their title to the land; and so when in 1968 the same family purported to sell and convey it to the plaintiff, they had nothing to sell or convey to him and he consequently bought nothing.”
The plaintiff’s appeal to the Western State Court of Appeal against this decision was allowed by that court and judgment was entered for the plaintiff. The Western State Court of Appeal was of the view that exhibit E was not tendered by the defendant merely as a receipt for the sum of 70 pounds paid by the 1st defendant to the Aragba family for the land in dispute. They observed that it was tendered as an agreement in support of the averment in his statement of defence. The learned Justices of the Court of Appeal then observed further as follows
“Although the learned Chief Justice said that exh. E was admitted in evidence only as a receipt for money paid by 1st defendant for the land, he did not stop there. He went into the document and quoted extensively therefrom in his judgment and at every turn used it as one would use a registered deed of conveyance. ..
Again still using the contents of exhibit E the learned Chief Justice in another part of his judgment erroneously held as follows-
‘and this inevitably leads to the conclusion that and family had divested themselves since 1953, of their title to the land, and so when in 1968 the same family purported to sell and convey it it to the plaintiff, they had nothing to sell or convey to him and he consequently bought nothing. ‘
The plaintiff’s case was that he bought the land in dispute and relied on his conveyance exhibit B. The 1st defendant’s case was that he had previously bought the land from plaintiff’s vendor and relied on an unregistered document exhibit E which was wrongly admitted in evidence by the trial court on the ground that the transaction between 1st defendant and his vendors was in accordance with customary law, which was not 1st defendant’s case. At any rate no sale to 1st defendant under native law and custom was proved because it was never alleged that possession was granted to him in the presence of witnesses. (See Aboyade Cole v. Folami 1 F.S.C. 66 at p. 68). The use of the land by the defendant is not inconsistent with the rights of Aragba family.
In our view exhibit B vests title to the land in the plaintiff and that at the time plaintiff took the conveyance from Aragba family the latter had not divested themselves of their title to the land in dispute.”
Finally, the Court of Appeal held that the 1st defendant failed to connect the land described in exhibit E with the land in dispute and that the trial judge ought to have held that he (the 1st defendant) had failed to prove his title to the land in dispute.
The defendants have now appealed to the Court against that decision. The points canvassed before us by mr. Akinjide, who appeared for the defendants/appellants, may be summarised as follows. From the averments in their pleadings and the evidence adduced in support, both parties were aware of he identity of the land being claimed. Moreover, the witnesses for both the plaintiff and the defendants admitted that the defendants/appellants had been using the land for about fifteen years with the knowledge of the members of the Aragba family and without any protest from any of them. The Western State Court of Appeal was therefore in error in holding that the defendants/appellants’ user of the land was not inconsistent with the rights of the Aragba family. Moreover, at the time some members of the Aragba family sold the same land to the plaintiff/respondent, they had nothing to sell. With respect to the purchase receipt (exhibit E), the learned trial judge was right in looking at the contents once it was admitted in evidence. Support for this view would be found in the decision in Fakoya v. St. Paul’s Church, Shagamu (1966) 1 ALL N.L.R. 74. Even if the document had been wrongly admitted, the learned trial judge could have found for the 1st defendant/appellant as he did on the ground of user and possession extending over a period of about 15 years. The plaintiff/respondent neither pleaded nor testified that he was a purchaser for value without notice. In any case, in order to avail himself of the protection given to a purchaser without notice, the plaintiff/respondent should have pleaded that he is one and as he had not done so, it was not that of the plaintiff/respondent and his witnesses and had made the appropriate findings of fact consistent with the evidence which he had accepted, it was not open to the Court of Apepal to go behind these findings.
In his reply, Mr. Olisa Chukura for the plaintiff/respondent rightly conceded that, having regard to the pleadings and the evidence adduced by both parties, the identiy of the land covered by the receipt (exhbit E) was not in dispute. He also conceded, again rightly in our view, that there was evidence of sale of land to the defendants/appellants under customary law. He submitted, nevertheless, that the decision of the Court of Appeals was based on certain specific findings of law with respect (a) to the use to which exhibit E could be put, (b) to the question of notice, and to the question of adverse possession. He then contended that as these findings were right in law, the judgment should not be disturbed.
In view of the evidence adduced at the trial and the clear findings of the learned trial judge on that evidence, we are unable to see any basis for the conclusions of the Court of Appeal.
In the first place, we think the court was in error in holding that the user of the land by the defendants/appellants was not inconsistent with the rights of the Aragba family. To our mind, the only inference which could be drawn, and which the learned trial judge did draw, from the evidence of Adebayo Alao Ojo Aragba (4th P/W), Joseph Oni (1st defendant). Yesufu Adeleke of the Aragba family (2nd D/W). Ramonu (3rd defendant) and Odeleye (3rd D/W) was that the defendants were in possession of the land in dispute with the knowledge of the Aragba family and in a manner clearly adverse to the rights of that family for about fifteen years. Moreover, the 1st defendant gave evidence of various acts of ownership over this long period of time to warrant the inference that he was the exclusive owner of the land in dispute. As we have held on a number of occasions, possession is a weapon of defence which, in appropriate cases, a defendant can use to defeat a claim for declaration of title. (See Da Costa v. Ikomi SC. 736/1966 delivered on 20th December, 1968 and Ayodele v. Olumide SC 260/67 delivered on 23rd may, 1969). This weapon has been used to advantage by the defendants/respondents in this case.
With respect to the attack of the Western State Court of Appeal on the admissibility of the document (exhibit E) and the use made by the learned trial judge of its contents, we will do no more than to refer to the observation of Farwell, L.J. in South-Eastern Raiway Co. v. Associated Portland Cement Manufacturers [1910] 1 Ch. 12 which reads-
“But the fact that there is some connection with or reference to land does not make a personal contract by any less a personal contract binding on him, with all the remedies arising thereout, unless the court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only.”
This observation was referred to with approval in Fakoya v. St. Paul’s Church, Shagamu (1966) 1 ALL N.L.R. 74 at p. 80 where Brett. J.S.C. who delivered the judgment of the court observed as follows-
“The personal obligations created by a contract for the sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered. Third parties may on occasion enter into the contract was not registered. Third parties may on occasion enter into unprofitable negotiations, but the register of instruments, but the register of instruments affecting land does not purport to record the personal obligations of those who have interests in land, and the purchaser for value and without notice will have no less protection in consequence of our decision in this case then he had before.”
We would, however, point out that as the plaintiff/respondent in the case in hand neither pleaded nor testified that he was a purchaser without notice of the prior interest of the defendants/appellants in the land, the protection referred to above would not apply to him. in this connection, it must be recalled that when the plaintiff/respondent was cross-examined about the 2nd, 3rd and 4th defendants/appellants’ presence on the land, he replied-
“I never saw the 2nd defendant on the land. I did not ask the 3rd and 4th defendants how long they had been on the land, neither did I ask the Mogaji when first he saw the people on the land.”
Even his witness (Adebayo Aragba – 4th P/W) testified about those on the land as follows-
“There were people using the land in dispute at the time we sold it to the plaintiff but we did not know how they got there, or how long they had been there. . . I was passing by the land in dispute in the last 15 years and have been seeing people using it. They included the 3rd defendant. Our family was collecting rents from those there and I did not ask how they got there.”
We are therefore not surprised that the learned trial judge, in this respect, made the following observation about the plaintiff/respondent-
“He clearly left me with the impression that he entrusted the transaction about the land in dispute to his witness. Akinrinmade, and he himself knew little about it until dispute arose. I do not believe that he ever went to see the land before he paid for it, or that he saw the 3rd and 4th defendants there at any time, and so his story that he spoke to them cannot be true. I believe that his witness who secured the land for him went there and saw sheds, but he would appear to make no inquiries from the people on the land. Apparently, he relied upon the assurance given to him by the vendors that the occupiers of the land when asked to quit would do so, and he used that to strengthen the plaintiff’s confidence to buy the land . . . On the other hand, the 4th P.W. . Adebayo Aragba, has not improved the evidence in this respect.”
Quite apart from the evidence of purchase given by the 1st defendant/appellant which the learned trial judge accepted, there is also evidence, which was also believed, that the 1st defendant/appellant was in continuous possession of the land in dispute, first by himself, and later through the 2nd, 3rd and 4th defendants/appellants, for about fifteen years and that this possession was not with the approval or consent of the Aragba family. Judging from the testimony of Adebayo Aragba (4th defendants/appellants on the land over this long period. There was no evidence that the Aragba family told them to quit the land either before or after the purported sale to the plaintiff/respondent. In any case, if an owner of land does nothing when a stranger starts building on his land, equity will not allow the owner to assert his title later. (See Ramsden v. Dyson (1866) L.R., I. H. of L. 129 as per Lord Cransworth, L.C. at p. 140).
There is no doubt, having regard to the admission made by the members of the Aragba family who testified at the trial, that the family knew of the defendants/appellants’ possession of the land without their consent and did nothing about it. It is thus clear that the defendants/appellants were in adverse possession of the land in the sense that their long possession is in opposition to the title of the Aragba family. Moreover, in view of the circumstances, disclosed in evidence, under which the said land was sold to the plaintiff/respondent, he could not be said to be unaware of the possibility of a prior have prompted him to investigate the title of the Aragba family more thoroughly. In any case, as we have said earlier, the plaintiff/respondent did not aver in his pleading nor did he testify that he was a purchaser for value without notice of any prior interest. If the law would not have allowed the Aragba family to assert their title to the land, certainly it would not also allow the plaintiff/respondent, in the circumstances of this case to do the same.
Faced with this indisputable evidence of long and continuous possession of the land by the defendants/appellants, it would have been most inequitable if the learned trial judge had granted the plaintiff/respondent’s claim for declaration of title. It must be remembered that the power to grant a declaration, being discretionary, should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be made unless there are circumstances that call for their making. (See Ibeneka v. Egbuna (1964) 1 W.L.R. 219 at per observation of Lord Radcliff at page 225). In view of the particular facts of the case in hand, we are not surprised that the plaintiff/respondent’s claim was dismissed by the learned judge.
For these reasons, we think the Western State Court of Appeal was in error in setting aside the judgment of the Ibadan High Court. The appeal therefore succeeds and it is allowed. The judgment of the Western State Court of Appeal, including the order as to costs, is accordingly set aside. The judgment of Somolu, C.J. given in the Ibadan High Court in Suit No. 1/78/68 on 16th December, 1968 dismissing the plaintiff/respondent’s claim, including his order as to costs, is hereby restored.
The defendants/appellants are awarded costs in the Court of Appeal assessed at 70 naira and in this court at 132 naira.
Appeal allowed; judgment of Western State Court of Appeal set aside and that of High Court restored.
SC.70/1972
