R. O. Ayodele Vs Dr. Olumide (1969)

LawGlobal-Hub Lead Judgment Report

In the Lagos High Court in Suit No. LD/36/1965 the original plaintiff claimed against the defendant now appellant:- (i) declaration of title in fee simple to a piece of land at Onike Abule Ondo, Iwaya, on the mainland of Lagos; (ii) possession of the said property; (iii) £100 damages for trespass; and (iv) an injunction.

PAGE| 2 George, Ag. J. (as he then was) gave his judgment on 10th August, 1966 non-suiting the plaintiff. In paragraphs 4 to 8 of his amended statement of claim, the plaintiff averred as follows:- “4. The said land forms portion of all that piece or parcel of land which one Theophilus Akintola Thomas became seised in fee simple by virtue of a deed of conveyance dated 21st December 1948 and registered as No. 41 at Page 41 in Volume 976 of the Lands Registry in the Office at Lagos.

5. By virtue of a deed of partition, dated the 3rd of November, 1937 and registered as No. 67 at Page 67 in Volume 484, one Bintu Fatumo became seised in fee simple in possession of ALL That piece or parcel of land referred to in paragraph 4 above. 5(a) By virtue of a deed of conveyance registered as No. 17 at Page 17 in Volume 1144 of the Register of Deeds kept at the Land Registry at Lagos, a parcel of land which forms portion of the land purchased by Madam Bintu Fatumo and Liasu Momoleso in 1921 was conveyed to Alhaji A. W. Elias for and on behalf of Liasu Momoleso family.

6. The plaintiff has been in possession of the said land since 1955 and he erected a wire fence round the said land.

7.The plaintiff also employed a caretaker who was farming and looking after the said land.

8. Early in January, 1965 the defendant without the permission, authority or consent of the plaintiff, entered upon the said land, removed the wire fence and destroyed all crops and palm trees therein, and wrong-fully started to erect a building on the said land”. The appellant denied all the above averments in his amended statement of defence wherein he averred in paras. 3-8 as follows:- “3. The defendant avers that the land was originally portion of the Oloto Chieftaincy family land seised (sic) by the said family absolutely according to Yoruba native law and custom from time immemorial.

4. Until the sale to the defendant’s predecessor in title the said family did not alienate same or part with possession thereof.

5. By virtue of conveyance dated 24th February, 1964, and registered as No. 3 at page 3 in Volume 1222 the Oloto Chieftaincy family sold and conveyed a large area of land (including the land claimed by and in pos-session of the defendant) to one Lawrence G. Da Costa and put him in possession thereof.

PAGE| 3 6. The said Da Costa sold some 2 plots to the defendant and put him in possession.

7. The defendant is unable to plead specifically to the amended statement of claim as the identity of the land claimed by the plaintiff is not clear and is therefore unable to admit or deny paragraph 3 of the amend-ed statement of claim.

8. The defendant denies that plaintiff was ever in possession of the land in the manner described in the amended statement of claim or at all”. Although it is common ground that the land in dispute which was part of a larger area of land originally belonged to the Oloto family, the following history of the respondent’s title emerged from the averments in the amended statement of claim as well as from the evidence adduced in support.

The Oloto family in 1918 allotted a piece of land measuring about 14 acres and of which the land in dispute is a portion to one Tekobo Fagbayi (also known as Tekobo Oloto), a member of the Oloto family for his use and occupation. In 1921, Tekobo Fagbayi got into debt and after judgment had been obtained against him the land was sold under a writ of fifa. The Oloto family acquiesced in the sale. With regard to the sale and the extent of their acquiescence, the present Oloto and head of the Oloto family (6th plaintiff’s witness) testified as follows:- “My family gave a piece of land to Tekobo Oloto.

Tekobo owed some-body and that person attached the property and it was sold. The family accepted hence we acknowledge Momoleso as the owner”. When pressed further about the sale, he testified further under cross-examination as follows:- “My family gave Tekobo the land for use and occupation. He sold it. A member of the family given land for use and occupation cannot sell the land without the consent of the family…. We don’t usually give members of the family an outright gift. But if they are in trouble the family allows them to sell the property with our knowledge…. Members of my family know the extent of the land. I never visited the land, but Sule Oba and Sarumi inspected the land”.

The purchasers were Bintu Fatumo and her husband Liasu Momoleso. No certificate of purchase or a plan showing the area of land purchased by them was produced in evidence. Bintu Fatumo (2nd plaintiff’s witness), could not even produce the purchase receipt. In 1937, after the death of Momoleso, the children of Momoleso partitioned the land into two, one portion measuring 8.713 acres was allotted to Bintu Fatumo and the other portion measuring 5.945 acres to the children of Momoleso one of whom is Alhaji Elias (5th plaintiff’s witness). Bintu Fatumo sold her portion in 1148 to one T. A. Thomas and executed the conveyance (exh. ‘D’) in his favour. In July, 1955, Thomas sold a portion measuring about 1017 square yards out of the land to the respondent and executed in his favour the conveyance exhibit ‘A’. There is nothing in the plan attached to exhibit ‘A’ showing the actual location of the land bought by the respondent within the 8.713 acres sold to Thomas.