Abudu G. Kehinde v. Wahabi Irawo (1973)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In suit No.HK/148/61 instituted before the Ikeja High Court, the plaintiff (herein respondent) claimed against the defendants as per his writ of summons dated November 14, 1961;

“(a) the sum of 100(pounds) being damages for trespass committed by the defendant, his servants and or agents on the plaintiff’s land at Olorunshogo, Mushin District covered by deed of conveyance dated the 5th day of February, 1952 registered as No. 74, at page 74, in volume 911 of the Lands Registry at Lagos (now at Ibadan).

(b) an injunction restraining the defendant, his servant and/or agents (sic) on the said land.”

According to the averments in the plaintiff’s statement of claim and the evidence adduced in support, the land in dispute is situated at Olorunshogo, Mushin District, Lagos, is covered by a deed of conveyance dated 5th February, 1952 and registered as No. 74, at page 74, in volume 911 of the Lands Registry, Lagos (later removed to Ibadan) as per plan attached and edged red thereon. The land is part of a large area of land belonging to and vested in fee simple in possession in Alhaji Alii Fahm who sold it to one Paul Izinare Samuel under and by virtue of a deed of conveyance dated 1st May, 1917 and which was duly registered as No. 81 at page 308 in volume 14 (exhibit B); between 1917 and 1933, when Samuel died, there was no disturbance of his possession and use of the land which he then devised by his will dated 5th July, 1929 to Maurice Adenrele Okuntola Samuel for an estate in fee simple; the latter sold a portion of this land to Lawani Akowonjo (P. W. 3) by means of a conveyance (exhibit C) dated April 25, 1946 and duly registered as No. 22 at page 22 in volume 700 in the Lands Registry.

Lawani Akowonjo sold this portion to N. A. B. Animashaun (P.W. 6) by virtue of a conveyance (exhibit D) dated 10th March, 1951 and registered as No. 49, at page 49 in volume 855, and Animashaun then sold the portion to the plaintiff under a conveyance (exhibit E) dated February 5, 1952 and registered as No. 74, at page 74, in volume 911.

The plaintiff adduced further evidence to the effect that, since the land in dispute was sold to him, he had cleared it, fenced it round and put a caretaker in charge; and that there had been no disturbance until 1961 when he learnt that trespasssers were laying foundations therein for buildings. He was directed by bricklayers on the site to the 1st and 3rd defendants. In suit No. HK/53/611 (exhibit F), he used unsuccessfully the 1st defendant who, after some prevarication, told him that it was the 2nd and the 4th defendants who were erecting the buildings. He thereafter instructed his solicitor, Mr Karimu Kotun (who died soon afterwards), to write warning letters to all trespassers, and he himself warned them verbally before deciding to institute the present action against all four defendants because they disregarded all the warnings and continued the buildings.

The defendants, on the other hand, averred that the land in dispute belonged to the Ojomo Eyisha family who had been settled there for over 300 years.

Abudu Raimi Apena (D.W. 2) gave evidence that in 1961 the Ojomo Eyisha family sold the land to Fasasi Alamu (D.W. 3) by a conveyance dated 16th March, 1961 and registered as No. 23, at page 23 in volume 477 (exhibit K). Fasasi Alamu made his three parcels of land measuring 100 feet by 50 feet each into four plots measuring 100 feet by 37 1/2 feet each. On 10th October, 1961, Fasasi Alamu sold to Alli Owe and Madam Stella A. Adekunle plots A and B respectively shown and known as No. 58 and 60 Alhaji Otta Street on a plan prepared and tendered as (exhibit 1) by Mr Alaka, a licensed surveyor. Abudu Raimi Apena (D.W. 2) joined in signing (exhibit K) and deposed that there had been no challenge to their right up to the 1961 sale. This principal defence witness also said that Aboki Bada who was the predecessor in title of Alhaji Fahm had no authority to sell since the large area had never been partitioned among the members of the Eyisha family. He claimed that he had been a member of the Eyisha family council since 1922 and that he started signing conveyances as a representative in 1953. He admitted having heard of Fafunmi who was sued by the Osun Apena branch in Suit No. 113/1913 for selling Ojomo Eyisha family land. The relevant part of the consent judgment (exhibit Q) reads

“That the Osun Apena and his people in consideration of the various purchasers paying the amount standing against their names in the list attached undertake to put the said purchasers………………into possession of the lands purchased to execute conveyance for the said lands when called on.”

On the attached list, Alhaji Fahm is shown as No. 46 and was to pay 10(pounds). Continuing his evidence, Abudu Raimi Apena (D.W. 2) was positive that the family had always been known as the Ojomo Eyisha family, and never as Aboki Bada family; he further said that the name Ojomo Eyisha family is not the result of a fusion of the Fafunmi branch and the Osun Apena branch, and denied that it came into existence only since the 1913 suit. He, however, admitted under cross-examination that till today the two branches of the family still exist: the Fafunmi branch headed by Odewale Savage Bada and the Osun Apena branch headed by himself. He finally agreed that the Ojomo Eyisha family has no overall head as such. As to the identity of the land in dispute, the learned trial judge observed as follows:

“A licensed surveyor, Mr Alaka (P. W. 5) was able to confirm that the land sold to plaintiff edged pink in exhibit 1 is the same as the land sold by the Eyisha family in 1961 in exhibit K. Counsel for all the parties agree as to the identity of the land in dispute.”

It would seem that, in spite of the consent judgment in suit No. 113/1913 of 1915, Alhaji Fahm did not pay the 10(pounds) stipulated in the list attached to (exhibit Q) and that Fafunmi continued to convey portions of family land. The learned trial judge found it necessary to draw this analogy

“This case is similar to the position in Odunsi v. Boulos reported in 4 W.A.C.A. at page 234. In that case one Anikin was to pay the 10(pounds) in accordance with the consent judgment of 1915 (exhibit Q) when the Osun Apena would have given him a conveyance. Anikin did not pay and did not receive a conveyance from Osun Apena. In 1915 Anikin purported to sell and Fafunmi joined in the conveyance. It was held in the court below that Anikin had acquired at most a voidable customary title voidable at the instance of the Osun Apena branch. In this case, Fafunmi followed up the sale by Aboki Bada and conveyed as the head of the Aboki Bada branch to Alhaji Fahm in 1917, as shown in (exhibit G). What Alhaji Fahm got in 1917, through (exhibit G) was a voidable customary title voidable at the instance of the Osun Apena branch. There is however nothing to show that any steps have been taken in this direction which is the proper procedure available.”