Nuru Williams and Ors V Adamo Akinwunmi and Ors (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The plaintiffs claim for the delivery of possession of an area of land and mesne profits was dismissed by Ekeruche J., sitting at lkeja on II April, 1962, and they have appealed: (High Court Ikeja Suit No. HK/84/59).

The trial judge accepted their case, that in 1927 their late father Abudu Ramonu Williams bought an area of land known as Eguru or lguru in lganmu and had a conveyance; that some of it was sold by order of court and the remainder divided among his children; and that the area now in dispute was allotted to the plaintiffs. He also accepted that between 1927 and 1953 the land was in the possession of their late father, and after his death of his children, and finally of the plaintiffs under the family division. He found that the Onitire family, to which the defendants belong, ceased to be in possession in 1927 but entered the land in 1953. He did not, however, give judgement for the plaintiffs because they had admitted that the land originally belonged to the Onitire family, which in his view raised a strong presumption that the title was in that family.

The conveyance recites that-

‘Whereas one Gboyin the eldest son of the late Onitire of Itire was during his lifetime seised in fee simple and in possession of the whole the freehold hereditaments commonly known as Iguru lands …. ‘

and the vendors convey ‘as heads and representatives for and on account of the whole members of the family of the said Gboyin deceased and as beneficial owners’. In the learned judges view there was nothing outside the conveyance which showed that Gboyin was seised of Eguru land in fee simple and the conveyance passed no title to the plaintiffs father.

The lst defendant admitted that in 1957, in a case with the estate of one Brown, he testified that the whole of Eguru land was owned by the Gboyin family, but in the judges view that earlier evidence of his did not preclude him from asserting that the land belonged to the Onitire family, nor show when the ownership passed from the Onitire family to Gboyin; and although the judge thought that the 1st defendant lied when he denied having sworn that he was the head of the Gboyin family, he nevertheless believed his evidence that the Onitire family had never sold or partitioned the land; which strikes us as an odd assessment of his evidence. The learned judge thought that the presumption that the land was still the property of the Onitire family had not been rebutted, and coupling that with the 1st defendants evidence that the family had never sold or partitioned the land, he held that the title was still in that family and they had a better title to possession.

He was sorry for the plaintiffs and, had they delivered a reply, would have given them judgement following Saidi v. Akinuwunmi (1956) I F.S.C. 107, on the ground of long possession in spite of the title being in the Onitire family; he observed as follows:

‘Although the plaintiffs rely on their long occupation of the land, the long occupation is one that ought to have been raised in a reply to the defendants statement of defence and not one that can as pleaded he relied on as a foundation for their claim.’

An order was made on 18 January, 1960 for delivery of a Statement of Claim and of a Defence, and more time was given to the parties on 9 May, 1960. Rule 16 in Order 13 of the High Court Rules (W.R.) provides that-

‘The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.’

No order was made for further pleadings, and the reason for refusing judgement was due to a mistake.

The plaintiffs have two legs to their c1aim-

(1) the recital in the conveyance of 1927 that Gboyin was the owner-which brings in section 129 of the Evidence Act: and