Frederick Oluyole Bamgboye Vs Abeke Olusoga (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, JSC.

The appellant was the plaintiff at the trial Court where his suit was dismissed and on appeal to the Court of Appeal, the decision of the trial Court was upheld. Thus he has appealed to this Court. The plaintiff’s claim was for a declaration of title on a piece of land situate, lying and being at Obele Igbodo otherwise known as Papa Ajao in Mushin District of Lagos State also called Palm Avenue and described in the plan as No. AL. 106.55 attached to a deed of conveyance dated 9th day of April, 1957, registered as No. 20 in Volume 196 at page 20 of Lands Registry, Ibadan. There was an alternative claim as follows:

“ALTERNATIVELY

A declaration that the plaintiff is the person entitled to the statutory right of occupancy in respect of the land described on Plan No. AL/ 106/55 attached to a Deed of Conveyance dated 9th day of April 1957 registered as No. 20 at Page 20 in Volume 196 of the Lands Registry, Ibadan.

N45, 000 special and general damages for trespass to the said piece of land known as Plots 40 and 41 of Chief J. A. Ajao’s Layout at Palm Avenue Mushin, Lagos State.

An Order of injunction restraining the defendant, her servants and or agents from committing further acts of trespass on the said land. Annual Rental Value is at least N20, 000.”

The defendant now respondent as she was in the Court of Appeal, simply defended the suit title and she never counter-claimed. In the statement of claim the Plaintiff averred that the land in dispute was a part of the land conveyed to Ojetola Ajao in 1953 by a deed of conveyance registered as No. 71 at page 71 in Volume 1028 of the Land Registry at Lagos on 24th December 1953, (Exhibit 1). The land, according to the appellant devolved on Ojetola Ajao’s children at his death.

The eldest of the children, Amos Adetona Ajao was given a power of attorney (Exhibit 2) dated 9th day of April 1957 by the other children. Amos Adetona caused the land to be laid out into plots and numbered consecutively. Of these plots, averred the plaintiff, he purchased three, namely Nos. 3, 40 and 41 respectively and was on the 18th of August 1955 duly issued a receipt (Exhibit 4 at the trial Court). The plaintiff was put into possession of the three plots; now in dispute are plots 40 and 41. The plaintiff exercised acts of possession over the land (plots 40 and 41) and remained in undisturbed possession all along until 1976.

He cleared the land of the bush, farmed on it by planting maize, vegetable, pepper, cassava and other crops and by 1957 had fenced the land in dispute. The plaintiff claimed that the sale of the plots was registered on a deed, Exhibit 3, in the Deeds Registry, Ibadan, on 9th April, 1957, as No. 20 page 20 in Volume 196 thereof. (It was Exhibit 3 at the trial Court).

The plaintiff, by virtue of being in possession, gave permission to Albert Adeoye Onitiri, P. W. 1, a motor mechanic to erect a workshop shed on the plots now in dispute. Mr. Onitiri duly erected a workshop on the land in 1974 and he had a thriving motor mechanic business there without let or hindrance up to 1976 when one morning he came to find that the workshop had been demolished and the spare parts store and the vehicles within the premises destroyed. His equipments were damaged and as a result of a complaint to the police by the defendant, he (P. W. 1) was arrested and locked up until the plaintiff stood surety for him. This was too much for Mr. Onitiri and he had to emigrate to the United Kingdom to seek new pastures.

At the trial, Isaac Owoade Ajao (P.W. 2) gave evidence and explained Exhibits 1, 2 and 3 aforementioned. He testified that Exhibit 3 forms part of the portion edged red in Exhibit 1. He tendered Exhibits 1, 2, and 3. The P. W. 1, Mr. Onitiri saw the foundation of the two buildings dug on the ruins of his workshop on the plot which later developed into two blocks of flats and stores erected by the defendant. The plaintiff’s witnesses testified in line with the statement of claim and he closed his case with the evidence of Marinho. Egidio de Souza who identified his signature as a witness on Exhibit 1 when he was a clerk in the Law Chambers of O. S. Thomas who prepared it.

The defendant claimed root of her title through Oteniya family and that she purchased the land in dispute through their attorney, Ali Isiba and tendered the power of attorney as Exhibit 11. She was given a receipt which the Court admitted as Exhibit 12 for the purchase of the two plots. It must be pointed out that Exhibit 12, the receipt was made in the form of a deed and duly stamped on 8th March, 1976 but not registered. It was prepared by a solicitor and it means nothing more than a receipt. It contained no plan of the land purchased and although it was signed by Alhaji Alli Isiba on 4th March, 1976. On the 8th day of November 1976 a conveyance was executed in her favour and it is Exhibit 13 which is certified true copy of the original. The survey plan attached to Exhibit 13 is about a single plot bound by beacons Nos 2346, 2347, 2348 and 2349, the land has the same shape as plots 40 and 41 on Exhibit 3, but the beacons on these Exhibits are at true North OB2602, OB2603 and OB2604 and on the true South OB2610, OB2609 and OB2608 respectively.

However, by the evidence before the trial Court the plots on Exhibit 3 form the plot on Exhibit 13, which are one and the same land. The defendant gave evidence as D.W.1 and tendered Exhibits 11, 12 and 13 and others not pertinent to this appeal but never went further than saying she acquired the title through Isiba (D. W. 2) the attorney of Oteniya family. Isiba in his evidence, for all the big issues raised in the pleadings was brief and only identified the power of attorney, Exhibit 11 and Exhibit 12, the receipt and cursorily Exhibit 13, the now contentious document.

The learned trial judge after reviewing the evidence and submissions of counsel, observed as I stated earlier in this judgment that the defendant (now respondent) did not set up a counter-claim and the onus was on the plaintiff to succeed on the strength of his case relying on Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 and Martins V Strachan (1744) stermreo 197n at 110n, Vincent Bello v. Eweka (1981) 1 S.C. 101, Odofin v. Ayoola (1984) 11 S.C. 72 – 122. The two parties relied entirely on their documents in their efforts to prove title. Learned trial Judge then reviewed most of the authorities on how title could be proved. He held that by Exhibit 13 the defendant’s radical title could be traced under native law and custom and that Exhibit 13 was identified by D.W. 2 who confirmed his father’s signature on the document. He finally held as follows: