Babatunde Jemi Alade Vs Lawani Aborishade (1960)

LawGlobal-Hub Lead Judgement Report

ABBOTT, F.J

This is an appeal by the plaintiff against the decision of the Western Region High Court sitting at Ikeja, refusing him a Declaration of Title to certain land at Idi Araba in Ikeja District. Mr. Dingle Foot, Q.C. and Mr. V.O. Munis appeared for the appellant, and Mr. D.O. Coker for the respondent.

At the outset of the hearing Mr. Foot asked leave to file and argue additional grounds of appeal, and this was granted. Mr. Foot, in his argument, covered all the original grounds filed in addressing us on his additional grounds.

It is necessary first to point out that the plaintiff’s claim as originally formulated was for a Declaration of Title “in fee simple” according to the English legal conception of that term and during the progress of the hearing the learned trial Judge suggested, and Counsel for the plaintiff agreed, that the claim should be amended to ask for Declaration of Title under Native Law and Custom. Originally the endorsement on the Writ also included a claim for possession, but this was abandoned.

Mr. Foot at the opening of his address, submitted to us that the amendment which the learned Judge had suggested as aforementioned, should not in fact have been agreed to by Counsel for the plaintiff, and should not have been made, and the burden of his argument on this subject was that the term ‘lee simple” in Nigeria has a connotation quite different from its connotation in English Law. Mr. Foot urges that in fact the terms used here means absolute title or absolute ownership by whatever method claimed or acquired.

I have considered this matter with some care but in view of what the learned Chief Justice is going to say in a few moments I think is better to express no opinion on this last point.

It must be remembered that in English law the fee simple was in olden days the nearest approach which could be gained by an individual to the absolute ownership of land which, from the time of the Norman Conquest, became vested in the Crown. In fact, in those days a man who held what is now known in English law as a fee simple was referred to as a “tenant in fee,” thus indicating that in spite of being regarded to all intents and purposes as the absolute owner of the property he nevertheless owed certain feudal dues to the Crown or its representative. That conception in modern times has largely disappeared, so that an owner in fee simple of land in England now is for every practical purpose the absolute owner thereof and can deal with the land in any way he wishes.

For the purposes of this judgment it is necessary first to refer to additional ground 3, which, in precis, complained that the learned trial Judge placed upon the plaintiff/appellant an onus which should have been placed upon the defendant and having found that the plaintiff failed to discharge his onus, dismissed his claim. It is abundantly clear from the record and from the exhibits tendered that first of all the land in dispute was originally owned by the Alashe Family and that by a Deed of Conveyance in favour of the appellant the Alashe Family purported to transfer to him the whole of their interest therein.

The respondent’s Defence attempted to establish that he had acquired the land from the Alashe Family, but the learned trial Judge found that this attempt failed. Very strong support for this finding is to be found in Exhibit ‘B’, a letter written by the respondent to the appellant, in his capacity as attorney for the Alashe Family. This reads as follows:-

Dear Sir,

ALASHE FAMILY LAND

I resolve to apply for ratification of the land purchased by my father from Messrs Ajai-Alashe and Oyatogun whose sale was unknown to the family.

I attached the plan herewith for your guidance.

(Sgd.) Lawanson Aborishade.