Micheal O. Olayioye Vs Oladeinde O. Oso (1969)

LawGlobal-Hub Lead Judgment Report

COKER, Ag. C.J.N.

The first respondent to this appeal was the plaintiff in the Lagos High Court, Suit No. LD/53/64 in which his writ of summons was endorse as follows:- “The land which forms a portion of the land shown on the plan attached to a deed of conveyance dated 10th September, 1945 and registered as No. 17 at page 17 in Volume 683 in the Register of Deeds kept in the Federal Lands Registry, in the office at Lagos and in possession of the plaintiff is the property of the said plaintiff.

The defendants, without the knowledge and consent of the plaintiff entered unto the said property and despite repeated warnings, started to dig for foundation. The plaintiff therefore claims against the defendant:- (a) Declaration that the said land is his property in fee simple absolute. (b) £200 damages for trespass committed by the defendant, his agents and or servants. (c) Injunction restraining the defendant, his agents and or servants from further trespassing on the said land”. The parties duly delivered their pleadings and the facts on which they fought the case were therein set out.

According to the amended statement of claim the plaintiff claims that the land in dispute being and situate at Ayilara Street, Surulere originally belonged to the Oloto Chieftaincy family, that that family sold a large piece of land containing the parcel now in dispute to one Madam Wusamotu Shelle who later re-sold to one Mrs. Modupe Moore. So far no conveyances were executed in favour of the purchasers but they were stated to have been put in possession.

The plaintiff’s amended statement of claim further avers that Mrs. Moore land out the laid into plots and that some time in 1932 one Rowland Porter, now deceased, bought the parcel In dispute from Mrs. Moore, was put in possession thereof and obtained a conveyance of the land from her. Finally, the statement of claim avers that in January, 1948, Rowland Porter sold the land to the plaintiff and put him in possession but gave him no conveyance.

Rowland Porter died on the 1st August, 1949. On the other hand, the amended statement of defence, apart from denying the allegations of fact in the statement of claim avers that the original owners of the land were the Oloto Chieftaincy family; that that family sold the land to the defendant, gave him a conveyance of it and put him in possession and that he is indeed in possession of the land In such right.

These are briefly the facts upon which the parties based their claims and the contest was fought throughout on those facts. Both sides called witnesses in support of their pleadings. At a stage of the proceedings a second plaintiff was joined, presumably in order to represent what was conceived as the legal estate of Rowland Porter, deceased.

With respect to the question of title, it is manifest from their pleadings that both parties claimed to have derived their titles from the Oloto Chieftaincy family who are the accepted original owners of the land and the issue for decision by the court was and is which of the parties could prove that he obtained an earlier title from that family.

In a reserved judgment, Alexander, J. as he then was observed, inter alia, as follows:- “In brief an attempt has been made by the 1st plaintiff and on his behalf to trace the root of title to the alleged sale by the Oloto Chieftaincy family to Madam Wusamotu Shelle. The defendant denies, however, that the Oloto Chieftaincy family ever sold the land in dispute to Madam Wusamotu Shelle, or to anyone else but the defendant……………  I hold, therefore, that this direct evidence adduced in respect of this root of title alleged by the 1st plaintiff to be traceable from the Oloto Chieftaincy family is either inadmissible or too nebulous to be of any value and I accordingly reject a… The learned trial Judge then proceeded to examine the issue of possession of the land and later on in his judgment stated as follows: “In the case of the land in dispute I hold that the acts of ownership exercised in relation thereto by the successive owners beginning with Mrs. Moore in 1931 and the open, undisturbed and continuous long possession thereof by her and her successors down to the 1st plaintiff are very strong presumptive evidence (which cannot be rebutted by the recent purported acts of ownership exercised by the Oloto Chieftaincy in relation to surrounding land) that Mrs. Moore obtained absolute ownership or title to the land in dispute from Madam Wusamotu Shelle and that Madam Wusamoto Shelle had herself obtained absolute ownership or title either directly or indirectly from the Oloto Chieftaincy family, the original owner.

I therefore draw the inference that Madam Wusamotu Shelle derived her title and possession lawfully, either directly or indirectly from the Oloto Chieftaincy family”.

At the end of his judgment, the learned trial Judge non-suited the plaintiffs on their claim for declaration of title, awarded £200 damages for trespass against the defendant and ordered a perpetual injunction against him as well as costs. The present appeal is from that judgment and the grounds of complaint on appeal may be summarized and follows:- (i) The Judge was wrong in law to order a non-suit of the claim for declaration of title instead of dismissing it; (ii)

The judgment for damages in trespass and injunction cannot be supported in law In view of the circumstances of this case and the law applicable. Concerning the first submission of learned counsel for the defendant, it is well to point out that on the plaintiffs’ statement of claim they based their case on the direct purchase of the land from the Oloto Chieftaincy family by Madam Wusamotu Shelle. At the trial the plaintiffs gave evidence and called witnesses, but the learned trial Judge found as quoted above that they failed to prove this.

The pleadings of the plaintiffs did not aver any indirect purchase from that family and the Judge was clearly in error in thinking that there was such a claim. In a series of cases constituting a long line of consistent authorities it has been held that where a plaintiff in an action for declaration of title fails to prove his case the proper order is one of dismissal. (See Kodilinye v. Odu (1935) 2 W.A.C.A. 336).

In the case in hand, the learned trial Judge non- suited the claim for declaration of title. A non-suit invariably means giving the party that lost another opportunity of relitigating the same case.

When k is proposed to make such an order it is only fair to invite addresses from counsel of both sides so that in the exercise of affording a party another chance, greater injustice is not being done to the other party who equally had fought the contest on the materials before the court.  (See Craig v.Craig (1957) N.M.L.R. 32).

We are in no doubt that the proper order on the claim for declaration of title in this case should have been one of dismissal and not a non-suit. On the second ground of complaint it is necessary to bear in mind that both parties had already agreed that the original owners of the land were the Oloto Chieftaincy family. Now, on the findings of the learned trial Judge, the plaintiffs had failed to prove that they derived their title from the original owners.

ln other words, they had failed to establish that they claimed through the true owners of the land. They are at the best squatters. Trespass is a wrong to possession and the rule of law is that a trespasser can maintain an action in trespass against anyone else but the true owner. (See Hemmings v. The Stoke Poges Golf Club (1920) 1 K.B.720).

On this basis it is inconceivable that the plaintiff in the circumstances of this case can maintain an action in trespass against the acknowledged owners of the land or any person or person claiming through them. That without doubt is the position vis a vis the defendant in this case and surely as he holds a conveyance from the accepted owners he cannot be successfully sued in trespass by some one who is himself a squatter.

The remedy or injunction will not avail where, as in this case, the plaintiff could not have succeeded in the claim for trespass and both claims should have been as well refused. The learned trial Judge dealt at length in his judgment with the issue of the long possession of the plaintiffs but, with respect to him, he was in error in employing the plea of long possession as a sword instead of as a shield.

A party in long possession is entitled to resist the claims of a rightful owner by pleading his long possession but understandably he cannot make that a basis of a claim in an action instituted at his own instance for a declaration of title as against a true owner.

Our attention was drawn by learned counsel for the defendant to the case of Odutola v. Akande 5 F.S.C. 142. That was a case relating to the registration of title and should in our view be understood in the light of the arguments put forward therein as it runs counter to the very long line of authorities which we think show the correct view and in which the plea of long possession has always been upheld in favour of the defendant only.

(See Da Costa v. Ikomi SC 733/66 of 20/12/68). In any case, we entertain real doubts as to the correctness of the decision and do not hesitate to differ from it in so far as it is necessary to make it consistent with these authorities.

In the result both grounds of appeal argued on behalf of the defendants succeed and the appeal is allowed.

The judgment of the Lagos High Court in Suit No. LD/53/64, including the order for costs, is set aside and it is ordered that the plaintiff’s case be dismissed and that this should be the order of the court.

The respondent shall pay the costs of the appeal in this Court fixed at 120 guineas and in the court below at 128 guineas.

Other Citation: (1969) LCN/1671(SC)