Jimoh Adebakin V. Sabitiyu Odujebe (1972)

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COKER, J.S.C 

The appellant was the defendant in an action instituted against him in the High Court, Ikeja, Lagos State. The plaintiff is the present respondent and her writ was endorsed for the following claims:-

“(1) Recovery of possession of all that piece or parcel of land situate lying and being at Akinwunmi Village, Mushin in the Ikeja Division, the said land being more particularly described on a plan to be filed in this action;

(2) 100 pound General Damages for trespass to the said land.

(3) Injunction restraining the defendant his servants an agents from further acts of trespass. The annual rental value of the land is 5 pound.

Title is involved.”

The plaintiff filed a statement of claim in which she stated that one Muranoh Akanni Eniafe “became seised in fee simple absolute in possession of the said land” by virtue of a conveyance dated the 25th day of August, 1948, and that by another conveyance dated the 14th March, 1958, the plaintiff had become “seised in fee simple absolute and in possession of the said land.” The statement of claim further stated that she duly entered into possession of the land and remained peacefully in such possession until “on or about the 2nd August, 1959” when the defendant entered the said land, dispossessed her and erected a building thereon despite her protests.

The Statement of Defence denied the dispossession of the plaintiff and averred that the land always belonged to the Eyisha Family under Native Law and Custom and that this family was in full, undisturbed and effective possession of the land until by virtue of an indenture of lease dated the 14th day of June, 1958, they had leased the said land to the defendant. The statement of defence finally in paragraph 9 thereof averred that –

“The defendant pleads and relies on

1. Acquiescence
2. Standing by
3. Laches
4. The Limitation law

We observe that although pleadings in this case closed with the filing of the statement of defence on the 13th May, 1963, no evidence was taken by way of hearing of this case until the 31st March, 1966, and then only before Kester, J., (as he then was), who, after part-hearing the case until the 29th April, 1966, left the jurisdiction for other duties. The hearing which has culminated in the judgment now on appeal did not commence before Beckley, J., until the 11th September, 1967, some four years after the close of pleadings and certainly five years since the institution of the proceedings. Cases involving lands are pre-eminently those which require as witnesses persons who have had some considerably long experience of the lands concerned as well as the relevant history and the passage of time may in these circumstances bring about incalculable and unexpected vicissitudes to the character of the cases and the availability of witnesses.

Be that as it may, the plaintiff did give evidence in support of her statement of claim. She produced both the Purchase Receipt (admitted as Exhibit “A”) and her Deed of Conveyance covering the land. This conveyance was admitted in evidence as Exhibit “B. She testified that after her purchase of the land she met the defendant on the land; that he would not leave the land despite the letters written to him by her solicitors and that she eventually instituted proceedings against him. She called her vendor Muranoh Akanni Eniafe who testified that he had bought the land from one R.A. Disu and produced his own conveyance which was admitted in evidence as Exhibit “D”. The plaintiff’s surveyor, Mr. Body Lawson, also gave evidence and identified the plan in the plaintiff’s conveyance Exhibit “B” with that on the conveyance of her vendor, Exhibit “D”.

The witness also produced a plan showing the area of encroachment which is in dispute between the parties and this was admitted in evidence as Exhibit “E”. The plaintiff had done the negotiation and purchase of the land through her landlord one Abu Bakare Okewande. He also gave evidence and described the negotiation with Eniafe. He stated that the plaintiff went into possession and indeed cleared the bush on the land regularly. In the same way the defendant gave evidence that he had bought the land from the Eyisha Family because he always knew that the land belonged to that Family. In the course of his testimony he stated before the court as follows:-

“I only knew at the time that the Eyisha family were the only family dealing with land in that neighbourhood at the time. My house cost me 200 pounds to build. I roofed the building about 12 years ago. In 1960, Lawyer Ojosipe wrote a letter to me which I handed over to my lawyer. At that time I had already completed my main building and I was living there. All my aunts were there on the land granted to me by the Eyisha family. I first built on the land. There was nothing between the plaintiff and myself until I got a writ of summons from her.”

The defendant called his surveyor, Marcellino Augustin Soweje who also prepared a composite plan (produced in evidence as Exhibit “G”) and identified the land verged red on Mr. Lawson’s plan Exhibit “E’ as the same area as that which he had verged green on his own composite plan, Exhibit “G”. The defendant called one Raimi Apena a member of the Ojomo Eyisha Family as a witness. Raimi Apena gave evidence to the effect that the land in dispute was leased by his Family to the defendant by virtue of the Deed of Lease Exhibit “F”; that the land in dispute was part of his Family land in respect of which they had plans, the first of which was made for his Family by the late Herbert Macaulay, licenced surveyor, in 1912. He testified in the course of his evidence thus:-