Alhaji Abdul Wahab Odekilekun Vs Mrs. Comfort Olubukola Hassan & Anor (1997)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal. Lagos Division, which had on the 11th day of January, 1989 allowed the appeal of the defendants from the decision of Olorunnimbe, J., sitting at Ikeja Judicial Division of the High Court of Lagos State. The cross-appeal of the plaintiff was, by the same judgment, dismissed by the said Court of Appeal.

The plaintiff had instituted an action against one S.F. Onamade, now deceased, the predecessor in title of the present defendants/respondents, claiming as endorsed in his amended Statement of Claim as follows –

“1. N250.00 being general damages for trespass committed by the defendant, his servants and/or agents on the plaintiff’s land shown and edged in red by erecting thereon a building shown and edged in blue on Plan CD/432/77;

2. A perpetual injunction restraining the defendant, his servants and/or agents from further trespass.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged with the same amended by various orders of court.

At the subsequent trial, the parties testified on their own behalf and called witnesses.

The land in dispute which is the subject matter of this appeal was part of a large tract of land which had been purchased by one Salu Kayaoja by a Deed of Conveyance, Exhibit D4 dated the 16th November, 1914. Both parties to this action claimed to have purchased the land in dispute from the descendants of the said Salu Kayaoja.

The plaintiff, for his title, relied on long possession of the land in dispute. It was his case that he was put into possession of the land since 1949. He also relied on the Deed of Partition dated the 17th December, 1949, Exhibit P4, by which some of the surviving children of Salu Kayaoja purported to partition their father’s land and to transfer a portion thereof to one Sadu Salu Kayaoja together with the Deed of Conveyance dated the 23rd October, 1951, Exhibit P1 by which the said Sadu Salu Kayaoja who incidentally testified for the defendant as D.W 3 conveyed to the plaintiff in fee simple absolute in possession, a portion of the said land transferred to him. It is this piece or parcel of land conveyed by Exhibit P1 that is in dispute in this appeal.

The defendant, for his own part, claimed title to the land in dispute by virtue of the Deed of Conveyance, Exhibit D2 dated the 19th September, 1965. This conveyance was executed by the donees of a Power of Attorney, Exhibit D3, dated the 2nd January, 1962 given by 17 descendants of Salu Kayaoja, acting on behalf of themselves and the entire members of their families. It was the case of the defendant that he took possession of this land and built a house thereon in 1967.

At the conclusion of hearing, the learned trial Judge Olorunnimbe, J. after a review of the evidence on the 13th day of December, 1985 was of the view that the deed of partition, Exhibit P.4 executed in favour of D.W. 3 was invalid by reason of the fact that those who executed it were not the only persons entitled to the land in dispute. On Exhibit P.1, he held that at the time it was executed in favour of the plaintiff by D.W. 3, the land in dispute did not belong to the said D.W. 3 but was Kayaoja family property. He concluded that the plaintiff’s title in so far as Exhibits P.1 and P. 4 were concerned, was defective.

Turning to the Power of Attorney, Exhibit D. 3, the learned trial Judge described it as invalid. His reasons were that many descendants of Salu Kayaoja who had interest in the property had not been joined in its execution and that the Power of Attorney was not executed in the presence of and attested to by two or more witnesses in accordance with the provisions of section 172(1) of the Property and Conveyancing Law, Cap. 100, Laws of Western Nigeria, 1959. He therefore concluded that the conveyance, Exhibit 2, executed in favour of the defendant by the donees of the said Exhibit D3 was equally invalid and null and void. He was however satisfied that the plaintiff having been in actual and exclusive possession of the land since 1949 until his possession was disturbed by the defendant in 1967 and later in 1977 was entitled to maintain an action in trespass against him.

Accordingly, he entered judgment for the plaintiff against the defendant in the sum of N200.00 being general damages for trespass. He also granted perpetual injunction restraining the defendant, his servants and/or agents from further acts of trespass on the land.

Dissatisfied with this judgment of the trial court, the defendant lodged an appeal against the whole decision to the Court of Appeal, Lagos Division but died before the appeal was heard. His two children were however substituted in his stead by the order of court as defendants/appellants in that court. The plaintiff also filed a cross-appeal against the decision of the trial court to the effect that his documents of title in respect of the land in dispute were defective.

The Court of Appeal in a unanimous judgment delivered on the 11th January, 1989 affirmed the trial court’s findings that Exhibits P.1 and P.4 were invalid and consequently dismissed the plaintiff’s cross-appeal. It however allowed the main appeal and set aside the trial court’s decision that the Power of Attorney, Exhibit 3 was also invalid. It held that the conveyance in favour of the defendants, Exhibit D2 was valid. Although it confirmed the finding of the trial court that the plaintiff had been in exclusive possession of the land in dispute until he was disturbed by the defendants, it held that this adverse possession by the plaintiff and acquiescence on the part of the Kayaoja family could not defeat the case of the defendants who had a better title than the plaintiff. It further held that the plaintiff was precluded from invoking the plea of long possession as a sword instead of as a shield.