Michael Alaba Onagoruwa V. Mrs. Aderoju Akinremi & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The appellant as plaintiff instituted two separate suits LD/513/80 and LD/512/80 against 1st and 2nd respondents respectively at the High Court, Lagos. The two suits were consolidated. The 3rd respondent was thereafter joined as co-defendant. In both the writ of summons and statement of claim as amended, the claim finally read:

“1. A DECLARATION that the plaintiff is the owner of the parcel of land known as Plots 89, 91 and 93, Dacosta Layout, Onike, Iwaya, Lagos State which parcel of land is covered by Title No. 10246.

2. N5,000.00 special and general damages for trespass.
3. A PERPETUAL INJUNCTION restraining the defendants whether by themselves or by their servants, agents or privies or otherwise howsoever from further trespassing on the plaintiff’s land known as Plots 89, 91 and 93 Dacosta Layout, Onike, Iwaya, Lagos State and covered by Title No. 10246.”

The plaintiff’s claim to ownership of the said plots 89, 91 and 93 is based ultimately on Registration of Titles Law, 1935 (Cap.166) vol. 7, Laws of Lagos State of Nigeria, 1994. The Oloto chieftaincy family originally owned the land involved, as part of their larger parcel of land. By a deed of conveyance dated 24 February, 1964 registered as No.3 at page 3 volume 1222 of the Register of deeds kept at the Lagos State land Registry, Lawrence Gregorio Da Costa acquired a vast parcel of land from the said Oloto chieftaincy family. This was admitted as Exhibit A. The said Da Costa laid the land into various plots. The land is known as L.G. Da Costa Layout, Onike, Yaba. Thereafter he sold eight of the plots to Oyenuyi Arolabu Oyesanya (pleaded erroneously by the plaintiff in para. 4 of his statement of claim as Oyeniyi Afolabi Oyesanya) by a deed of conveyance which the said Oyesanya registered under Title No. 10246: see Exhibit B. The eight plots so registered are numbered 17,78,80, 85,87,89,91 and 93. By a deed of transfer dated 15th March, 1978, the said Oyeniyi Arolabu Oyesanya transferred the entire eight plots to Michael Alaba Onagoruwa (the plaintiff). The transfer was registered under the same Title No. 10246: see Exhibit C. The registration history of the land is noted in the Lagos Title No. MO10246 showing

(A) Property Register and

(B) Proprietorship Register.

This records among other information a short description of the land as plots 17,78,80,85,87,89,91 and 93 on L.G. Da Costa Layout in the Property Register and the transfer from Oyenuyi Arolabu Oyesanya to Michael Alaba Onagoruwa in the Proprietorship Register plan drawn on 20th April, 1972 showing the layout of the said plots in the name of Mr. Oye A. Oyesanya is attached: see Exhibit I. There is also what is referred to as a “Portion of Intelligence Sheet” intended, I believe, to show the relative position of some of the plots registered under title No. MO10246 and another title No.M09228: see Exhibit D. In respect of the said title No. M09228, the present 3rd respondent had in suit No. LD/1272/72 at the Lagos High Court claimed ownership and sought rectification of the Register. But the claim was dismissed on 9 May, 1985 and no appeal was taken: see Exhibit E. The appellant in the present case filed what he called composite plans (Exhibits G and G1). The two plans show the delineation of land claimed to belong to the 3rd respondent as represented in two different but apparently conflicting plans and its relationship with the appellant’s registered plots of land. It is observed that the said land is not shown to encroach on any of the appellant’s plots of land. the said composite plans have not been demonstrated to be of any use in proving any alleged trespass if that was the purpose, as I believe it might have been.

The appellant in his statement of claim pleaded how he came to be the owner of the plots of land under registered title. He led evidence and tendered the Exhibits already referred to, particularly Exhibits A, B, C, C1 and D. He said that plot 89 is No. 145 in the intelligence sheet (Exhibit D) while plots 91 and 93 are Nos. 146 and 147 respectively. He said further that the 1st and 2nd respondents broke into plots 89, 91 and 93. Specifically, he identified the 2nd respondent as occupying plot 89 (i.e. No. 145) While the 1st respondent is on Nos. 146 and 147. The 3rd respondent pleaded that the 1st and 2nd respondents are his tenants and claimed not to know of any layout called Da Costa Layout but that if there was such layout, his own land was not within that layout. In para. 8, he pleaded: “That with reference to paragraph 8 of the statement of claim, the third defendant says that he has never at anytime either personally or through any person or agents trespassed on the plaintiff’s land and will put the plaintiff to the strictest proof thereof.” I must say here that the 3rd respondent led no evidence.

The 1st and 2nd respondents pleaded that they are tenants of the 3rd respondent and have erected buildings on their respective pieces of land measuring about 40ft by 90ft. They also pleaded, as the 3rd respondent did, that they have no knowledge of Da Costa Layout and in any case they are not within such layout; and they repeated what the 3rd respondent pleaded in para. 8 of his statement of defence. The 1st and 2nd respondents testified, saying they were 3rd respondent’s tenants although there was nothing given or said in evidence to show that the 3rd respondent owns land within the area in question.

The 2nd respondent testified that the appellant took some people to the land on which she erected her building to demolish it. The police eventually intervened. The 1st and 2nd respondents called a licensed surveyor, Daniel Olaloye Ogunmekan, DW.3, who tendered what he called a composite plan (Exhibit L) in which he superimposed two survey plans, No. DL/C/661 showing land of 1st respondent and No. D02/LA/27 showing the 2nd respondent’s land, upon another survey plan showing land claimed to belong to the 3rd respondent. When cross-examined, he said a composite plan was usually prepared to show the land claimed by a plaintiff and that claimed by a defendant to ascertain any encroachment. In this particular case the two parcels of land claimed by the 1st and 2nd respondents are shown to lie within the land alleged to be for the 3rd respondent, and just as the so-called composite plans (Exhibits. G and G1) produced by the appellant show, there is nothing to indicate any encroachment between the land alleged to be 3rd respondent’s and the plots in question belonging to the appellant.

On 16th February, 1990, the learned trial Judge (Famakinwa, J.) who heard the case dismissed the claim. Before doing so, he made certain findings some of which were contrary to the evidence before him and some controversial. First, he said:

“From the pleadings and evidence advanced in the case, I am not satisfied that the plaintiff has established his title in respect of plots 89, 91 and 93 in L.G. Dacosta Layout. It is indeed important in this case to state that the plaintiff did not produce the said L.G. Dacosta Layout. Thus, one does not know where plots 89, 91 and 93 are today in the area. Thus, it is difficult to say that these plots is (sic) in Dacosta Layout.”

It seems to me the learned trial Judge is not familiar with the Registration of Titles Law applicable in Lagos State and did not examine the documentary evidence tendered and admitted in these proceedings. Second, the learned trial Judge said:

“…..there is no credible evidence before me that the plaintiff is in possession of plots 89, 91 and 93 which is (sic) the same as plots 145, 146 and 147 to enable him to maintain an action in trespass ….. I am unable to decree that the plaintiff is the owner of plots 89, 91 and 93 Da-Costa Layout in Onike Iwaya, Lagos State.”