Adetoun Olukoya Vs Isamotu A. Ashiru (2006)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The appeal herein emanates from a land dispute. It is against the judgment of the Court of Appeal (hereinafter referred to as the court below) which affirmed the decision of the Ibadan High Court. The respondent herein was the plaintiff at the said High Court while the appellant was defendant. As between these two parties a dispute arose when the defendant sought to commence building on the land and found the plaintiff’s agent and lessee in possession. A fracas ensued with the result that both parties (who in the rest of this Judgment I shall refer to as plaintiff and defendant simpliciter respectively) ended up at the Police Station.

Following that incident the plaintiff instituted this suit. In her Amended statement of claim, the plaintiff claimed for declaration of title to land as follows:

1. A declaration that the plaintiff is the person entitled to a grant to statutory right of occupancy to the piece of land situate at Sumbare Layout Ijebu Road, Oyo State of Nigeria and covered by instruments (1) dated 13th day of February, 1978 registered and numbered 53 at page 53 in volume 235 of the lands registry in the office at Ibadan. (2) dated the 17th day of September, 1969 and registered as number 33 in volume 1153 of the lands registry in the office at lbadan.
2. N5,000 being special and general damages for trespass committed on the said piece of land sometimes between July and August 1984 by the defendant, his servants and agents.
3. Injunction to restrain the defendant his servants and or agents or anybody claiming through or in trust for him from further entry and or committing further acts of trespass on the said land.

In response, the defendant filed a statement of defence and counter-claim, also laying claim to the land in dispute. In proof of her title to the land the plaintiff led documentary evidence of conveyances duly registered conveying the land to her predecessor in title. In addition, she relied on acts of ownership on the land over a long period of time.

On the other hand, the defendant gave traditional historical evidence of his to support his case. It is pertinent however to point out that there is no dispute as to the identity of the land.

Decision of the High Court.

The judgment of the trial High Court is at pages 123 to 144 of the record. After considering the evidence adduced by both parties in which the plaintiff called eight witnesses and the defendant called nine witnesses for the defence, the learned trial Judge, Ajileye, J, accepted the evidence of the plaintiff and gave her judgment. In doing so, he made certain significant findings of fact, to wit:

1. That the land was originally owned by the Awojobi Kure family.
2. That the Awojobi Kure family had been selling their land to third parties when DW9 (now head of the Awojobi Kure family) was away in Ghana. Among those selling on behalf of the family were Gbadamosi Adeoye (DW9’s father), Yinusa Akanji (DW9’s brother) Braimoh Adigun (family member) and Lasisi Amoo.
3. That the plaintiff had exercised sufficient acts of ownership on the land to prove title, while there was no evidence that the defendant had performed any acts of ownership on the land.
4. That the documents of title produced in evidence by the plaintiff were registered prior to the defendants’ documents of title and as such the plaintiff had a priority in interest.

Concluding his judgment, the learned trial Judge held, inter alia, as follows:

“From the evidence, oral and documentary evidence before me, S.A. Olukoya died on 26th July, 1968. Exhibit B was purported to have been signed by him on 22/8/68 nearly a month after his death; I hold that exhibit B in the circumstances is fraudulently procured, not by the defendant but by the so-called purchasers, namely, Omotayo Adeoye and Lajide Adesola Adewunmi. Significantly, it is this fraudulent purchaser that is, Layide Adesola Adewunmi, who set in motion a fraudulent chain of sales that culminated in the purchase by the defendant, of the land in dispute. Layide Adesola Adewunmi executed exh. P (a deed of conveyance) in favour of Rasaki Adisa, who in turn joined with his own father Wahabi Latunji Layiwola to sell to the defendant. Exhibit P, having been based on exhibit B – fraudulently procured, is itself a fraudulent conveyance and is hereby declared a nullity.

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In sum, I hold that the plaintiff’s case is well founded. I hereby declare that she is entitled to grant of statutory right of occupancy of the land in dispute, whose deeds of conveyances had been registered, as claimed in her writ of summons. I grant her the sum of N1,000 as general damages. No claim for special damage by her is proved to my satisfaction and none is allowed.”

The learned trial Judge in addition dismissed the defendant’s counter claim. Aggrieved by the said decision, the defendant as appellant, appealed to the court below. The ground of appeal lodged by the defendant to the court below was within a relatively narrow compass. Simply put, it reads: Whether on the evidence before the court the plaintiff traced her title to the Awojobi Kure family who had been selling land and D.W 9 was not challenged.

In its considered judgment spanning pages 176 to 189 of the record, the court, below affirmed the judgment of the trial court. One of the issues raised by the defendant/appellant against the trial court’s decision is that there was no evidence given by the plaintiff which linked exhibit C (plaintiff/predecessor’s deed of conveyance) to the Awojobi Kure family. The court below rejected this submission, rightly in my view, when it held that although the plaintiff did not put in evidence of the linkage, the evidence establishing such linkage was supplied by the defendant and upon it, the plaintiff could rightly rely. See Akinola v. Oluwo (1962) 2 All NLR 224 at 227, (1962) 1 SCNLR 223. Thus, having linked exhibit C to the Awojobi Kure family, the court below rightly affirmed the trial court’s conveyances of the plaintiff registered before that of the defendant took priority over the defendant’s conveyance. Thus, the court below held that the plaintiff had proved sufficient acts of ownership over the land to establish title.