S. B. Fashanu V. M.a. Adekoya (1974)

LawGlobal-Hub Lead Judgment Report

COKER, JSC. 

The principal issues in this appeal are issues of fact. The plaintiff, now appellant, sued the respondent, as defendant, on a writ endorsed for 100 pounds damages for trespass committed by the defendant on the plaintiff’s land at Ajoke Dosumu Street, Surulere, and a perpetual injunction against the defendant restraining him from a continuation or repetition of such trespass. The property in dispute is situated as stated by the plaintiff on his writ and it is not seriously disputed by any of the parties that the land on which the building stood was originally owned by the Oloto Chieftaincy Family and that by a series of acts in law the plaintiff became the owner of the land by virtue of a Deed of Conveyance duly registered according to law. It was also the case of the plaintiff that after his purchase of the land he caused an allotment plan of the entire land to be prepared and approved and that the defendant later unlawfully entered upon a portion of the said land.

The defendant filed a statement of defence and that statement contained the allegation later found to be true, that an original allotment plan, No. LD. 61, prepared on behalf of the plaintiff, was altered by the Town Planning Authorities and that as a result of this the plaintiff caused another allotment plan to be made. The new allotment plan was No. TP. 33 and was duly approved by the Town Planning Authorities. An inevitable consequence of this, however, was that the several plots overlapped each other on the boundaries. The defence contends that plots No. 6 and 7 in the earlier allotment plan became eventually vested in one Joseph A. Adebayo Browne and that the plaintiff sold to the defendant plot No. 25 in the new allotment plan for 400 pounds, from which he was paid a part-payment of 110 pounds. Paragraph 9 of the defendant’s statement of defence reads as follows:

“9.   When the plaintiff sold to one J. B. Atunrase the said plot No. 25 as well as plot No. 26 of the said Allotment Plan No. T.P.33 the defendant demanded from the plaintiff the return of his said deposit of 110 pounds but the plaintiff agreed to sell in exchange and did sell for the sum of 700 pounds plot 17 of the said Allotment Plan No. TP 33 to the defendant and put the defendant into possession thereof and assisted the defendant in getting John  Adolphus Adebayo Browne to agree to sell and who in fact sold to the defendant the portion of land which overlaps between the plots Nos. 6 and 7 of the Allotment Plan No. LD. 61 and Plot No. 17 of the new Allotment Plan No. LD. 61 and Plot No. 17 of the new Allotment Plan No. T. P. 33.”

The statement of defence finally avers that by virtue of these facts, the defendant has been in possession of the land he occupied and that he had “erected buildings on the said land which cost him substantial sums of money”.
At the trial, the ownership of the entire land on which the portion in dispute formed part, was not in dispute, “all agreed that the plaintiff owned all of the land”. There was evidence that as a result of the plaintiff’s allotment plan being altered by the Town Planning Authorities and the preparation of a new allotment plan, there was a great deal of confusion among his purchasers due to the overlapping on each other of some of the plots. The old Allotment Plan No. LD. 61 was produced in evidence as Exhibit G and the new one, No. TP. 33, as Exhibit G1. the plan of the entire plaintiff’s land was also produced and admitted as Exhibit A. Concerning the confusion in the boundaries of the several plots, Mr. Body Lawson, a licensed surveyor, testifying on behalf of the plaintiff, stated thus:-

“The plaintiff has sold to Mr. Browne the area edged brown on Exhibit A. Plot 17 on Exhibit G1 is part of the area edged brown on Exhibit G. What is left of plot 17 is not the complete original plot 17. The portion left is about two thirds of the plot and is  2026 square feet.

RE:-EXAMINATION: part of plot 7 on Exhibit G became part of plot 17 on Exhibit G1. Part of plot 6 became part of plot 17. The plots on the Exhibit G1 are smaller than those on Exhibit G.”

The plaintiff gave evidence to the effect that the old plots Nos. 6 and 7 had been sold by him and that indeed on the new plan Exhibit G1 they fell within a portion of the new plot No. 17. He stated that in any case he did not sell plot No.17 to the defendant nor at any time agreed to do so. He stated, however, that whilst he was in Ibadan some time in 1966 he came down to Lagos on the invitation of his sister to find that the defendant has entered on the land within the new plot No. 17 and was preparing to erect a building. He caused written notices of warning to be sent to the defendant and served those notices on the defendant and this, apart from his own oral warnings to him. In the course of his evidence on this point, the plaintiff testified as follows:-

“I promised to sell plot 25 to one Reuben Adebambo, I received from him 110 pounds as part payment. I gave him a temporary receipt. Somebody else entered upon plot 25. I offered plot 15 to him. He bought it and paid the balance. I conveyed it to him. He has built thereon. The sale was before 1966. I never promised to sell plot 17 either to the defendant or to Adebambo, i. e. my portion of plot 17. I took no money from either of them in respect of the plot. Abosede Anike Fashanu is my wife – the defendant spoke to her about the land at Ibadan in my house. He asked her to persuade me to sell. He said he had bought part of plot 17 and wanted me to sell my portion. The defendant has already built on the land then. It was after I had written to him and before I received Exhibit K.”

The plaintiff’s wife confirmed his testimony that the defendant asked him (plaintiff) to sell plot No. 17 to him but that the plaintiff refused to do so. The defendant also gave evidence at the trial. He testified in part thus;-

“I know the plaintiff. I met him for the first time early in 1962. In June, 1963, I met him at the opening ceremony of Mr. & Mrs. Abdul’s house built on plaintiff’s layout. Mrs. Abdul is my sister. I asked my brother to ask him to sell one plot to me. I gave my brother 400 pounds for the plot. Mr. brother is Chief R.O. Adebambo. In consequence of the instruction my brother gave me Exhibit N (issued for 110 pounds). I was later offered plot 17 in lieu of plot 25 which was to be sold to me. My brother asked me to take possession and I built on the land.
I took possession in 1965. I completed the building in June 1966. I personally delivered an invitation to the plaintiff at Ibadan for the housewarming which he did not attend.”

The defence did not give any evidence of a concluded contract of sale, but in continuation of his evidence, the defendant stated as follows:-

“Later I took a bottle of schnapps to him at his house at Ibadan. We all drank after he had poured libation. He, his wife, P.W.2, and I were there. He agreed to my building on the land, I spoke to him before I started building on the land. He told me the price was 450 pounds. I offered the balance to him before June, 1966, but he refused to take it. He said he would not accept 450; although it was the usual price he wanted more. I agreed to give him 500 pounds. He said it was not enough. I have two buildings on Exhibit G. My sister bought plot 16. The front part of plot 17 (facing the road) I bought from Mr. Browne, i.e. the portion edged brown. The 2 buildings cost me 12,000 at the time. Part of them is on part of plot 16 which I obtained from my sister.”

The defendant also called as a witness his relation Reuben Adebambo who testified to paying a sum of 110 to the plaintiff as part-payment for plot No. 25 in the new allotment but that later, as someone else went upon plot No. 25, the plaintiff agreed to exchange that plot for No. 17 which his relation, the defendant, now occupied. Evidence to the same effect was given by another defence witness, Ganiyu Adeyemi Abdul.