Mrs. Gladys Abiade Majekodunmi & Ors V. Mutiu Abina (2002)
LAWGLOBAL HUB Lead Judgment Report
O. UWAIFO, J.S.C.
There was an application to register title to land. The application was made to the Registrar of Titles, Lagos State in respect of Title No.OM 11052 to No.66 Karimu Street, Surulere, Lagos. An objection was taken. The objector also applied for the registration of title in respect of Title No.OM 11574 to both No.66 and No.68 Karimu Street and accordingly objected to title to No.66 being registered for the applicant. The two applications along with the objection were heard together and a determination was made by the Registrar of Titles, Lands Registry Court. The present appellants were substituted for the objector, Williams Sanyaolu, now deceased, at the appellate High Court. The respondent was also substituted for the applicant, Babatunde Badaru Abina (deceased) in this court. The substance of the objection was that both No.66 and No.68 Karimu Street together formed a vacant parcel of land the objector bought from one Idris Ashaka in 1941 and a deed of conveyance was executed in his favour by him. The said Idris Ashaka was alleged to have bought the land at a public auction sale also in 1941. The objector said he erected a building on the portion now known as No.68 Karimu Street in 1948. That building was said to have been rented out and used as a school from 1959 while the portion now known as No.66 Karimu Street was used as playground for the school children.
The applicant’s case is that the land now known as No.66 Karimu Street formed part of Oloto Chieftaincy family land. One Mr. J.M. Martins got a conveyance in respect of a large parcel of land from Oloto Chieftaincy family by a deed of conveyance dated 6 August, 1910 (exhibit C) of which the land in No.66 Karimu Street was a part. After Mr. Martins’ death, his executors sold this land to the applicant and he got a deed of conveyance from them dated 16 September, 1974 (exhibit A). Counsel for both the objector and the applicant addressed the court. The printed record of proceedings is full of typographical errors and omissions. I shall lift the substance of the submission by each counsel as can be found in the said printed record. Learned counsel for the objector was recorded to have said: “It will be unnecessary to go to question of facts because the question of law raised was sufficient for the court to discuss this action. It is a question of law which should be followed. The Limitation Decree of 1966 is still the law of this country as it has not been revoked. He submitted that the application was brought after 21 years which is an infringement of the provisions of Limitation Decree of 1966. This Honourable Court has no jurisdiction to hear this case and should be dismissed.” It was contended by learned counsel that the objector had been on the land for over 25 years. He further said that the objector obtained his deed of conveyance in 1940 (sic) while the applicant got his in 1974. The essence of the objector’s counsel’s submission was that the applicant did not seek to register his title within the limitation period stated in the said Limitation Decree of 1966 and that since he himself had been in possession for more than that period, the applicant was debarred thereby from being registered as the title holder. Therefore, he added he the objector had obtained title by adverse possession which should be registered. The record shows that learned counsel for the applicant submitted that the deed of conveyance by which the applicant got title was executed on 16 December, 1974 and that immediately thereafter he applied for registration of the title. He said the title is traced to Oloto Chieftaincy family who are the original or radical owners. He further made the following submission: “The application before the court is to register the property at No.66 Karimu Street, Surulere and not an action for a declaration of title. The Limitation Decree of 1966 applies in respect of declaration of title in the High Court. The submission in its entirety is misconstrued and should be discountenanced. This Honourable Court has jurisdiction to hear this application under section 5 of the Register (sic) of Titles Law Cap. 121 Laws of Lagos State.”
In his judgment delivered on 4 August, 1980, the Registrar of Titles found that the applicant traced his root of title to the radical owners, namely Oloto Chieftaincy family whereas the objector was unable to do so. He held the view that the duty and power of the Registrar were confined to the investigation of title to be satisfied before registering the same and not to declare or confer title on any applicant who applies for registration. He further held that the interests which he could register under first registration were as set out in a statute section 5 of the Registration of Titles Law (the Law) which came into effect on 4 April, 1935, now in Cap.166, vol.7 Laws of Lagos State, 1994. He then observed as follows: “After careful consideration of the legal authorities cited by the learned counsel for the objector including the section of Limitation Law which he referred to, I have to state in clear terms that they are not in any way appropriate to the present issue of registration under section 5(1)(a) to (c) of the R.T.L. (i.e. Registration of Titles Law) now before the court. The proceedings before this court were not an action for a Registration of Title, and even if they were, long possession will only be available as a weapon of defence against ostensibly clear title but not by itself constitute a basis of title.” The Registrar came to the conclusion that going by the documentary evidence tendered before him, the applicant was the person entitled to be registered as the owner of No.66 Karimu Street, Surulere. He overruled the objection made by the objector and at the same time dismissed his application in respect of title No.MO11574. He finally made orders as follows: “The Land Registry should proceed with the applicant’s application for 1st registration of 66 Karimu Street, Surulere. The application should not be processed until the expiration of 30 days with effect from today, allowing period for appeal. The application is No.MO 11052. MO 11574 and the objection in MO 11052 are hereby dismissed.” In essence, the application to register Title No. 11052 was granted after the objection to it was overruled. The application by the objector to register Title No. MO 11574 (which would have covered both No.66 and No.68 Karimu Street) was dismissed. The objector appealed to the High Court, Lagos. He died before the appeal was heard and was substituted by order of court with the present six appellants. The learned Chief Judge who heard the appeal (J.A. Adefarasin, C.J.) dismissed the same on 14 March, 1985. He held that he was unable to disturb the findings of the Registrar as to the documentary evidence in favour of title in the applicant/respondent which he accepted and the evidence of long possession relied on by the objector/appellants with which he was not satisfied. The appellants then took their case on appeal to the Court of Appeal, Lagos Division, upon five issues for determination, one of which, issue 3, was stated as follows:- “Whether a party with an interest in land that arises by adverse possession under section 21 of the Limitation Law (Lagos State) is entitled at law or in equity to an estate in fee simple in the land under section 6 of the Registration of Titles Law (Lagos State) and whether the appellants so qualify as such adverse possessors of the land in dispute.” I have specifically referred to this issue because
(1) it has again raised in these proceedings the matter as to the registrability under section 6 of the Law, an adverse possessor’s title derived by virtue of section 21 of the Limitation Law;
(2) it was extensively canvassed in the court below as it has now been done before this court;
(3) it involves a consideration of the decision of this court in Agboola v. Abimbola (1969) 1 All NLR 287; (1969) NSCC (vol.6) 263 to which attention was drawn as having been decided per incuriam.
The court below dismissed the appeal. It did not appear to have dealt sufficiently with the said issue 3. The Registrar of Titles, as already shown in a passage from his judgment, made reference to the Limitation Law and said it was inappropriate to the issue of registration before him, and that long possession was only a weapon of defence against clear evidence of title but would not of itself be a basis for title to be registered. The court below per Babalakin, JCA, who read the leading judgment, said inter alia: “On issue No.3 it is erroneous on the part of the counsel for the appellants to argue as he did that the Chief Judge failed to answer the question whether an interest in land which arises by adverse possession under section 21 of the Limitation Law is within the expression ‘owner in law or in equity’ in section 6 of the Registration of Titles Law….. The Registrar of Titles carefully considered the Titles Law intendment of sections 5 and 6 of the Registration Titles Law and found that long possession relied upon by the appellants under section 21 of Limitation Law is not applicable to the facts of this case. He then relied on the cases of Agboola v. Abimbola (1969) 1 All N.L.R. 287 and Atunrase v. Olugbile CCHCJ/3/73 page 55 which cases deal with first registration and supported his contention. He further found that all other cases cited by the counsel for the appellants dealt with recovery of possession of land and are not applicable to application for first registration. The learned Chief Judge agreed with this reasoning in his judgment……….I must re-affirm that long possession can only be used as a shield not as a sword.”
In their appeal against the judgment of the court below to this court, the appellants have set down four issues for determination, namely:
“1. Whether the respondent was entitled to be registered upon his application as the first registered owner of No.66 Karimu Street,Surulere, Lagos having regard to the evidence
- Whether the appellants were not entitled to be registered as the first registered owners of Nos.66 and/or 68 Karimu Street,Surulere, Lagos upon the evidence
- Whether the lower court properly considered the point of law raised by the appellants as to whether they qualify as adverse possessors of the land in dispute arising under section 21 of the Limitation Law of Lagos State, or, in equity, and if so, whether such interest qualifies them under section 6 of the Registration of Titles Law to defeat the respondent’s application and ground their own application
- Whether the lower court was not wrong in its assessment of the manner of the appellants’ attack on the judgment of the High Court”
Issue No.1
Although the appellants’ counsel argued issues Nos. 1, 2 and 3 together in the appellants’ brief of argument, I shall take them separately. Issue 1 asks whether the applicant was entitled to be registered as the first registered owner of No. 66 Karimu Street. The argument is that the land in the deed of conveyance (exhibit A) relied on by the applicant was not shown to have fallen within the land in the deed of conveyance (exhibit C) obtained from the Martins family who trace their title to Oloto Chieftaincy family. At the Registrar of Titles Court, the applicant gave evidence that Oloto Chieftaincy family, the radical owners of a large parcel of land, sold part to Mr. J. M. Martins as per exhibit C and that the Martins family sold part of the said land to him as per exhibit A, which land is now No.66 Karimu Street. It was the title to that land he sought to register. It was at no stage raised as an issue that the land was not traceable to Oloto Chieftaincy family land. When the deed of conveyance between Oloto Chieftaincy family and Mr. Martins (exh. C) was tendered as evidence, the objection raised by the learned counsel for the objector was that no proper foundation was laid for its production and further that the document was not from proper custody. The Registrar in his ruling said: “I am of the view that it will not be proper for this Honourable Court to refuse the acceptance of the deed of conveyance between Oloto Chieftaincy Family and J.M. Martins in that the applicant told the court that he bought the land from Martins family, who had earlier bought from Oloto Chieftaincy Family. The document has also been certified by the Land Registry as coming from their custody which in effect makes it a public document.” The applicant was cross-examined. It was mainly on the point as to how Martins family were able to execute the deed of conveyance on the strength of the probate order obtained from the court and the court order made later in 1939. The applicant added that he was put on the land in 1972 before the deed of conveyance was executed. There was no suggestion made to him that the land covered by the said deed did not fall within the land Martins got from Oloto Chieftaincy family. The Registrar of Titles was satisfied with the title shown by the applicant as per the deed of conveyance, exhibit A. The appellate High Court and the Court of Appeal upheld the finding of the Registrar. The finding is not perverse and this court is not entitled to make a contrary finding to that concurrent finding: see Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355; Odeniji v. Akinpelu (1998) 7 NWLR (Pt. 557) 174; Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1. Under section 5(1)(a) of the Law, the applicant brought himself within circumstances in which first registration is compulsory and by virtue of section 9(2) he was registered. This latter subsection reads: “If after investigation of an application for first registration the registrar is satisfied that the applicant is entitled to be as registered as the owner of the whole or part of the land claimed, he shall be registered accordingly.”
I accordingly answer issue No.1 in the affirmative.
Issue No.2
This issue wants to know whether the objector was not entitled to be registered as the owner of No.66 and/or No.68 Karimu Street upon the documentary evidence admitted by the Registrar. The deed of conveyance (exhibit G) upon which the objector relied was pitted against those relied on by the applicant (exhibits A and C). Exhibit C dates back to 1910 and was traced to Oloto Chieftaincy family as the root, whereas exhibit G was executed in 1948 and the root of title is unknown. When the objector was cross-examined, he said inter alia: “I bought directly from Ashaka and I paid him. I spoke to Ashaka that I want to buy land and he told me that he has one to sell. I made enquiry as to how he Ashaka got the land he told me that he bought it from public auction. It was Moshalewa Thomas the auctioneer who sold to Ashaka. Ashaka being the highest bidder bought the land when it was auctioned. I do not know the original owners of the land … Ashaka did not give me any documents from Thomas to him he only gave me a receipt of his to me. He did not show me any of his paper from Thomas to him.” It is therefore plain that whether in terms of prior root of title, or known root of title, or proper documentation of title, the objector’s claim to first registration of title could not compare with that of the applicant; nor indeed could it be reasonably found satisfactory for first registration even in the absence of the applicant’s claim. Under section 9(2) of the Law once the Registrar is not satisfied with the evidence of title, he shall dismiss the application for registration. Nothing has been shown that the Registrar was wrong in so dismissing the objector’s application for registration upon the basis of the document he presented. Quite rightly, the two courts below uphold that decision. I think it was a good thing all three courts came to that decision because it is improper to accept first registration of title that is obviously defective since once registered it is indefeasible unless under very restricted conditions for rectification: see Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) 38. I therefore answer issue No. 2 in the affirmative.
Issue No.3
This issue is about the registrability of title obtained by adverse possession as a result of the operation of sections 17 and 21 of the Limitation Law of Lagos State, having regard to the provision of section 6(1)(a) of the Registration of Titles Law. The appellants’ counsel’s contention is that the objector had been in adverse possession of the land in question for over 12 years and therefore that the applicant’s title to the said land had become extinguished. As a result he could not be registered as the owner of title. He also submits that by section 6(1)(a) of the Law, the objector became thereby a person who was ‘entitled, at law or in equity, to an estate in fee simple’, in the said land and who ‘may apply to be registered in the registry as the owner of the fee simple of that land’. His further submission is that Agboola v. Abimbola (supra) was decided per incuriam having not considered the said section 6(1)(c) of the Law and is therefore not binding.
First, it is important to consider sections 17 and 21 of the Limitation Law of Lagos State in order ultimately to be able to decide in what way they are appropriate to an application to register title to land. The sections read thus:
“17. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
- On the expiration of the period fixed by this law for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
If a person claims that he has acquired possessory title to land by way of adverse possession under a relevant statute of limitation, his case will turn whether or not he can establish that he has dispossessed the title holder or that the title holder has discontinued possession for the statutory period. This is what the authorities can be found to have laid down.
Let me refer to similar provisions of the law of limitation as contained in the Limitation Act 1939 of England. Sections 4(3) and 5(1) provide:
“4(3) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person .
5(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
It is to be noted that in Lagos, the Limitation Law does not apply to land which is subject to customary law: see section 68(1) of the Limitation Law. Other than that, there can be no doubt that the right of an owner of land becomes extinguished after twelve years’ adverse possession: see Sosan v. Ademuyiwa (1986) 3 NWLR Pt.241, a decision of this court. This follows when it is clear that the owner has been dispossessed or has discontinued possession.
Whether a person has been dispossessed of land or he has positively discontinued possession has been an interesting subject of pronouncements in many authorities. The fact of dispossession or discontinuance of possession must be beyond dispute before the limitation period can begin to run. It has been held that mere non-use does not amount to discontinuance of possession: see Littledale v. Liverpool College (1900) 1 Ch. 19 at 22. It is also said that there must be an abandonment of the actual and legal possession of the land: see Norton v. London and North Western Railway Co. (1879-80) 13 Ch. 268 at 273. In the case of dispossession by an adverse possessor, Lord Denning M.R. has said: “There must be something in the nature of an ouster of the true owner by the wrongful possessor”: see Wallis’s Ltd. v. Shell-Mex and BP Ltd. (1974) 3 All ER 575 at 580. It is useful to quote from the judgment of Ormrod L.J., in regard to the interpretation of section 5(1) of the Act of England (similar to section 17 of the Law of Lagos State), in that same case at page 589 as follows: “The qualifying words, in my opinion, are of crucial importance, for it appears to me that the word, ‘possession’ in this section and its predecessors has acquired a special and restricted meaning. The overall impression created by the authorities is that the courts have always been reluctant to allow an encroacher or squatter to acquire a good title to land against the true owner, and have interpreted the word ‘possession’ in this con very narrowly. It is said to be a question of fact depending on all the particular circumstances of the case (Bligh v. Martin (1968) 1 All ER 1157, (1968) 1 WLR 804 but, to the relatively untutored eye, it has acquired all the appearances of a difficult question of law. The general principle appears to be that, until the contrary is proved, possession in law follows the right to possess:Kynoch Ltd v. Rowlands (1912) 1 Ch 527 at 534. Lord Lindley MR in Littledale v. Liverpool College (1900) 1 Ch 19 at 21 put it in these words: ‘In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.’ The same point was made by Bramwell L.J in Leigh v. Jack (1879) 5 Ex D 264 at 272 where he said, referring to the Statute of Limitations: ‘Two things appear to be contemplated by that enactment, dispossession and discontinuance of possession.’ If this is the right way to approach the problem, the question becomes: ‘Has the claimant proved that the title holder has been dispossessed, or has discontinued his possession, of the land in question for the statutory period’ rather than: ‘Has the claimant proved that he (through himself or others on whose possession he can rely) (has) been in possession for the requisite number of years’ It certainly makes it easier to understand the authorities if one adopts the first formulation.”
From the above, it seems to me that it is not enough that a claimant is able to show that he has been in possession of land for the requisite number of years. The burden on him is higher than that. He has to show something more. He is the one claiming that land owned by the title holder has now become his. It has become his because the owner has either been dispossessed or has discontinued possession. Therefore the claimant has the clear onus to prove that the title holder has been dispossessed, or has discontinued his possession. Although sections 17 and 21 of the Limitation Law (as also section 4(3) and 5(1) of the Limitation Act of England) are about the person bringing an action to recover land, the manner in which they can possibly, in their effect, provide an estate in favour of an adverse possessor is somehow reflected in the observation of Cozens-Hardy M.R. in In Re Atkinson and Horsell’s Contract (1912) 2 Ch. 1 at page 9 as follows: “We have had a great deal of discussion as to the effect of the Statute of Limitations in a matter of this kind. As I indicated in the course of Mr. Macnaghten’s reply, my present view is that the phrase ‘statutory conveyance’, and so on, is a loose metaphorical term, and that the true view is this, that whenever you find a person in possession of property that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute when once you have extinguished the right of every other person to challenge it. That is the effect of S.34 of the Real Property Limitation Act, and that explains how the person who has been in possession for more than the statutory period does get an absolute legal estate in the fee, and there is nobody who can challenge the presumption which his possession of the property gives.” I think I ought to say here that the fact of legal estate in fee being obtained through possession is subject to the adverse possessor proving that the title holder has been dispossessed, or has discontinued possession and that he has extinguished the right of every other person to challenge his having become the absolute owner in fee. Following the reasoning in the above observation, learned counsel for the appellants has argued in their brief of argument that the objector was entitled to be registered on the ground, first, that from “all the evidence adduced before the learned Registrar, the objector proved by cogent and uncontroverted evidence that he had been in open and adverse possession of the land in dispute for over 30 years which ought to be preferred to that of the respondent who led no evidence of his predecessors-in-title’s possession of, the land before 1972”; and, second, that a legal owner whose title or interest has been extinguished by virtue of the Limitation Law, cannot successfully claim first registration under the Registration of Titles Law against such adverse claimant. Forceful as the submission would appear to be, I have to say it has not taken account of the following:
(1) It is not correct that the objector proved by cogent and uncontroverted evidence, as claimed, that he had been in open and adverse possession of the land for the period alleged. The applicant said when the objector was about to fence round the land, he wrote a letter of protest, exhibit B. This was sometime in 1973. He further said:- “At the time I wrote exhibit B I went to No.66 Karimu Street, Surulere, there was no building there at all when I went there in 1973. There was no building on the land.” This shows disputed evidence of possession by the objector as alleged by him for the relevant period.
(2) It is not strictly correct to say there was no evidence of the applicant’s predecessors-in-title’s possession of the land before 1972. Exhibit C (deed of conveyance) has a survey plan of the land showing beacons. In law, that is evidence of possession because apart from obvious physical acts of possession, demarcation of land with survey beacons, or even pegs is enough act of possession: see Wuta Ofei v. Danquah (1961) 3 All ER 596; Alatishe v. Sanyaolu (1964) 1 All NLR 398; Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1.Assuming that to be somehow technical, it must be realised that in law, an owner of land based on established title need no evidence of physical possession to show that he is in possession, or, better still, that he had not been dispossessed or has not discontinued possession. He has no such burden of proving that he is still in possession of his land. As put by Ormrod L.J. in Wallis’s Ltd. (supra) in the passage from his judgment already recited, the proper approach is whether the claimant has proved that the title holder has been dispossessed, or has discontinued his possession, and not that the claimant has shown that he has been in possession of the land for the requisite number of years.
(3) The relevant provisions of the Limitation Law in question are principally about preventing a person from bringing action to recover land when his title to the land has been extinguished after twelve years of adverse possession by another. In other words, he will be unable to seek a declaration of title or an order to recover possession of land to which his title has been extinguished.
But what is the effect of this in regard to the first registration of title This becomes of moment when there is dispute about the adverse possession claimed since the Registrar of Titles does not declare title but merely registers it after investigation. His duty does not involve settling contentious evidence as to ownership of title between parties wishing for first registration but is confined to investigating evidence of title presented to him to ascertain if satisfactory for such registration. There must be cases, actually if not all cases, in which he will refuse first registration when it involves a decision as to ownership until the contending parties resolve their claims to title in court. Section 9(1) of the Law says: “In investigating a title with a view to first registration, the registrar shall accept and act on legal evidence or evidence ordinarily required by conveyancers.” As section 6(1) is subject to section 9(1), the evidence the Registrar can act on must be incontrovertible. He cannot act on evidence of adverse possession when the title holder shows up and a dispute as to the title claimed by the adverse possessor is raised. It seems to me the evidence he can accept must be such conclusive evidence to the effect that the rights of all other people to the land have invariably been extinguished: see In re Atkinson (supra) at page 9 per Cozens-Hardy M.R. and page 17 per Fletcher Moulton L.J. The Registrar cannot listen to contending evidence as to whether the title of a land owner has been extinguished or not. To do so is to undertake to declare title. In the present case, the Registrar rightly stated he had no such power.
Learned counsel for the appellants has criticised the decision of this court in Agboola v. Abimbola (supra) saying that it was decided per incuriam on the ground that it did not take account of section 6(1)(a) of the Law. With due respect, I do not accept the contention of learned counsel. In Agboola’s case, the appellant sought to register the title to land he acquired from Oloto Chieftaincy family. This was refused on the ground that that family had had, in one way or another, their title to the parcel of land extinguished in that, among other things, the family had “acquiesced in the adverse title and possession (of the respondent) as far back as 1942”. It was in this connection this court observed per Coker Ag. CJN as follows (1969) NSCC (V01.6) at pp.266-267): “… the Registrar held in this case that the English Statutes of Limitations 1833 and 1834 applied so as to bar the interest of the Oloto Chieftaincy family in the land. The reason he gave for this was that as far back as the year 1913 Kanyinde, an Egba refugee, had assumed a form of possession over the land which was obviously adverse to that of the Oloto’s. With respect, this is not a correct exposition of the legal situation. Assuming and this fact was not proved and was in fact later jettisoned that Kanyinde was an Egba refugee at the time that he purported to sell the land, he had no more than an interest under native law and custom. We do not consider that any authorities are now needed to show the inapplicability of Statutes of Limitations to such tenures. It is therefore not possible to support the use made herein by the Registrar of Titles of the Statutes of Limitations 1833 and 1834.” As can be seen, the view expressed in which the Statutes of Limitations were denied to be applicable was on the basis that the tenure involved was under native law and custom. The further view later expressed in the judgment was that a squatter’s interest or title as acknowledged in such cases like Akpan Awo v. Cookey-Gam (1913) 2 NLR 100 and Saidi v. Akinwunmi (1956) SCNLR 339; (1956) 1 FSC 107 had always been applied in favour of a defendant resisting the claim against him and not in favour of a plaintiff claiming title thereby. I cannot see in what way this view could have been altered by the provisions of section 6(1)(a) of the Law the way it was expressed in the light of the facts of Agboola v. Abimbola as to hold that it was decided per incuriam. It is true that that was the connection in which long possession was used in those cases cited in which the defendants’ long and undisturbed possession was protected. The rationale behind Akpan Awo v. Cookey Gam (supra) was approved by the Federal Supreme Court in Akinwunmi v. Saidi (1956) SCNLR 339; and also in the Privy Council case of Oshodi v. Balogun (1936) 4 WACA 1 at p.6 where Lord Maugham said, having regard to the peculiar circumstances of Lagos, that: ” … it may well be just and equitable, in the absence of a statute of limitation, to hold it inequitable to deprive persons of property of which they have held undisputed possession for many years, and to decide that the knowledge and acquiescence of the native family who originally owned the Land may be fairly presumed …”
Perhaps, I should recite the provisions of section 6(1)(a) here as follows:
“6(1) Subject to the provisions of this Law –
(a) any person who has power to sell, or is entitled, at law or in equity, to an estate in fee simple, in any land, whether subject or not to incumbrances, may apply to be registered in the registry as the owner of that land.”
I think it is right to say that if these provisions, having regard to the compendious language in which they are couched, are to be seen to cover adverse possessor’s interest, this is more easily comprehensible because it has been judicially recognised that an adverse possessor is entitled to register the estate acquired thereby: see Rihawi v. Aromashodun (1952) 14 WACA 204. It seems to me that the reading into those provisions the rights derived by an adverse possessor might well be incidental, and that the main intendment would be likely to be in regard to mortgages, settlements, trusteeships etc where there is power to sell as appropriate; or where there is a valid claim, in equity or at law, to the fee simple in any land such as the equitable rights of a beneficiary or cestui que, or the legal rights of a trustee, an executor or administrator of an estate. I must say, however, that whether incidental or otherwise, when interpreting section 6(1)(a) of the Law, it cannot now be denied that the estate created by adverse possession is recognised there under. It cannot therefore be rightly argued that the observation in Agboola’ s case was either in conflict or inconsistent with the provisions of section 6( l)(a) so as to conclude that it was detrimental to, or did not recognise the interest of the adverse possessor, having regard to the perculiar circumstances of that case where the assertion of mere long possession to found title was the focus of consideration. Nor can it be said that had section 6(1)(a) been adverted to that observation would not have been appropriate upon the facts of that case in reference to the two authorities of Akpan Awo and Saidi cited therein. I answer issue No. 3 on the basis of the facts of the present case as already discussed by me that a case under section 21 of the Limitation Law of Lagos State has not arisen to qualify the appellants as adverse possessors who have title to register.
Issue No.4 taken literally is not such as can affect the result of this appeal and I find it of no consequence. But in its implication, the issue in essence is a challenge to findings of fact of three courts below but framed differently. This court will not interfere with those findings unless under special circumstances in order to prevent a miscarriage of justice: see Enabuleke v. Agbonlahor (1999) 4 NWLR (Pt.598) 166; Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1; Okeke v. Agbodike (1999) 14 NWLR (Pt.638) 215. No such special circumstances have been shown here. I have therefore come to the conclusion that this appeal has no merit and dismiss it with N10,000.00 costs to the respondent against E the appellants.
SC.22/1994
