Alhaja Juradat Animashaun V. G. A. Olojo (1990)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J .S.C. 

On the 9th day of July, 1990, I dismissed this appeal after reading the briefs of argument filed and served by the parties together with the record of proceedings in the court below and the judgment of the court below and hearing counsel to the parties in elaboration of the briefs filed. I then reserved my reasons for the judgment till today. I now proceed to give them.

The appellant was the plaintiff and the respondent the defendant in an action filed and instituted in the High Court of Lagos State in the Lagos Judicial Division Holden at Lagos in which the plaintiff claimed against the defendant

“i. A declaration that the plaintiff has a statutory or customary right of occupancy in ALL THAT PIECE OR PARCEL OF LAND, situate and lying and being at NO.27 MAFOLUKU VILLAGE, OSHODI, IKEJA DIVISION OF LAGOS STATE which with its dimensions and abuttal is more particularly described and delineated on the PLAN filed in this suit and thereon EDGED ‘PINK’ and that she is entitled to a statutory or customary certificate of occupancy thereof; for the sum of N1,000.00 (One thousand naira) being general damages for the trespass committed on the said land by himself, his servants and/or agents, on or about December, 1979;

2. For an injunction restraining the defendant, his servants and/or agents from entering upon the said land and/or from committing further acts of trespass thereon.

The suit was filed on the 22nd day of May, 1980. On completion of the pleadings in the High Court the matter was listed before Omololu-Thomas, J. But before the completion of the hearing, Omololu-Thomas, J., was appointed a Justice of the Court of Appeal. Hearing de novo was then commenced by Akin Oshodi, J., to whom the matter was transferred. On completion of the hearing, the learned trial Judge, in a well considered judgment dismissed the claim. In the concluding paragraphs of his judgment the learned trial Judge found and concluded as follows:

“It is my finding that the plaintiff has failed to prove that she was a bona fide purchaser of the legal estate of the disputed land without notice of the prior equitable interest of the defendant. If she had inspected the land at the time of sale, as a reasonable purchaser would do, she would have considered that the defendant was in possession and if she had gone further to inquire of him about the nature of his occupation she would have had notice of the nature of his interest. Perhaps I may at this stage refer to a portion of the judgment of Obaseki, J.S.C., in the case of Karimu Ayinla v. Silawu Sijuwola SC.126/1983 delivered on the 11th May, 1984 (1984) 5 SC.44 at pages 76 and 77 the learned Justice stated as follows:

‘ if there is proof that money was paid for land coupled with the entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if possession is continuously maintained. See T.A. Orasanmi v. M.O. Idowu (1959) 4 F.S.C. 40; [1959] S.C.N.L.R.97.’

More close to the contention here is the decision in Soremekun v. Shodipo (1959) L.L.R.30 to the effect that if land is sold to a party without execution of a formal deed of conveyance, his interest was no more than equitable. Legal estate of another party would be more preferred to it if the party with the equitable interest is not in possession. As these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession, it cannot be overridden by a legal estate. This principle accords with the decision of the Privy Council in Oshodi v. Balogun and Others 4 W.A.C.A. at page 6 and Sulaiman and Another v. Johnson 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect, it matures into legal estate.”

In the final analysis, I hold that the plaintiff has failed to prove his claims against the defendant and the action is hereby dismissed with N100.00 costs to the defendant.”

Being dissatisfied with the judgment of the learned trial Judge, the plaintiff appealed to the Court of Appeal without success. The Court of Appeal by a majority of two Justices (Mohammed and Ademola, JJ.C.A.) to one Justice (Kolawole, J.C.A.) dismissed the appeal and affirmed the decision of the learned trial Judge (Akin Oshodi, J.)

In the concluding part of his judgment, Uthman Mohammed, J.C.A., who read the lead judgment, said:

“On the 17th of January, 1975 and the 4th April, 1975 payments were made and receipts Exhibits E and E1, were issued respectively, for plots 27 and 28. He obtained a conveyance for plot 28. He obtained no conveyance for plot 27. On the evidence in respect of this acquisition, the witness of the appellant, p.w.2 said:

“I know plots 765 and 766 in the area. It was acquired by government acquisition. Before government acquisition we had sold to some people. As a result of the acquisition we gave other plots to some tenants in the area affected.”

The respondent testified and proved by production of Exhibit C that he was the one to whom plots 765 and 766 were sold. The appellant gave evidence that plot 27 was sold and conveyed to her in April, 1976.