M. S. Atunrase & Ors V. Alhaji Abdul Mojid Sunmola & Anor (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C 

In a consolidated suit before the High Court of Lagos, at Ikeja, the plaintiffs instituted an action against the defendants for a declaration of title, damages for trespass, injunction and recovery of possession in respect of a parcel of land at Mende Village, Onigbongo, in the Ikeja District of Lagos State.

The plaintiffs’ case, as pleaded in their Amended Statement of Claim, was that the land in dispute was a portion of a larger parcel of land which originally belonged to one Oyero of Onigbongbo Village. It was their case that the said Oyero had three children namely -Aina Adu, Taiwo Jabita and Kehinde Ebo; that the said children of Oyero inherited the whole of his landed property after his death in accordance with Yoruba customary law; that in 1946 there was a partition of Oyero’s land among his three children and that the land at Mende Village, which is the land in dispute was the portion alloted to Taiwo Jabita while other children were allotted other portions of Oyero’s land; that after the partition, various allottees were put in possession of their respective portions; that about 1954, Bello Taiwo Jabita (alias Kosegbe), the only son of Jabita, sold the land allotted to Taiwo Jabita at Mende Village to the plaintiffs; that the portion sold to the plaintiffs was conveyed to them by virtue of a Deed of Conveyance dated 4th September, 1954 and registered as No. 49 at page 49 in Volume K1 (Colony) of the Register of Deeds at the office in Lagos, that after the sale to the plaintiffs, they were put in possession by their vendor; and that the plaintiffs thereafter put a caretaker on the land and exercised other acts of ownership on it without disturbance until about 1970 when the defendants trespassed on the land, and in spite of the plaintiffs’ protest, have continued their acts of trespass ever since.

In their Amended Statement of Defence, the defendants denied ever trespassing on the plaintiffs’ land. It was their case that they leased or bought the land in dispute from the Oyero family who jointly owned the land and who put them in possession; that the Oyero family land was never partitioned as claimed by the plaintiffs; that at one time when there was news that one Bello Isiba, without family consent, was dealing with family land, notices were put on the land warning prospective purchasers not to transact business with the said Bello Isiba; that later an action was instituted against the said Bello Isiba and the Folarin in suit No. AB/3/55 in respect of a portion of family land and judgement was obtained against them.

At the trial all the parties gave evidence and called witnesses in support of their respective claims. At the conclusion of the hearing, the learned trial judge, Cole, J. carefully considered all the various issues raised in the case, and in a reserved judgement, dismissed the plaintiffs’ claim for declaration of title but awarded them damages for trespass and granted injunction restraining the defendants from Committing further acts of trespass on the land in dispute. Both parties were dissatisfied with the decision of the trial court and so appealed to the Court of Appeal where their appeals were dismissed. Still dissatisfied, both have appealed to this Court.

On behalf of the defendants (hereinafter called “the appellants” in the main appeal and “the respondents” in the cross-appeal) several groundsof appeal were filed. In his brief of argument, however, Mr. Akinrele, learned Senior Advocate for the appellants, raised six issues for the consideration of the court in this appeal. He put them in his brief as follows:

(1) “Could the respondents succeed in an action for trespass and injunction without showing a valid title, the appellants having been in possession, by their pleadings at the time of summons

(2) Is there any acquiescence on the part of the appellants’ predecessors in title

(3) Could the Limitation Decree or Law have been applied to this case in the Court of Appeal and if so does it assist the respondents

(4) Does the mention of the names of members of the three branches of the Oyero family indicate that the title of the appellants is not derived from the Oyero family

(5) Is it necessary to declare a void title void

(6) And finally, ought the appeal of the appellants to have been allowed at the Court of Appeal”

There are, in my view, only two major issues in this appeal which I think need be considered, and they are:

(i) Whether the respondents could maintain an action for trespass without showing a valid title,