Alhaji Amuda I. Adebambo & Ors V. Alhaji Lamidi Daodu Olowosago & Ors (1985)

LawGlobal-Hub Lead Judgment Report

KOLAWOLE, J.C.A.

This is an appeal by the plaintiffs/appellants against the judgment of Desalu, J. delivered on 4th February, 1983, sitting at the Ikeja Judicial Division of the Lagos State High Court. By their amended writ of summons the plaintiffs had claimed:

(1) A declaration that they are entitled to a Statutory Right of Occupancy or in the alternative a Customary Right of Occupancy in respect of all the piece and parcel of land situate along Lagos Ikorodu Road, Ikorodu, Lagos State which land is more particularly shown and delineated by beacon Nos. WN. 2722 and WN. 2723 respectively and verged red in the plan No. L and L.C.B 21 registered with the Deed of Grant dated 28th day of December, 1959 and registered as No. 17 at page 17 in vol. 358 of the land registry, Ibadan.

(2) Possession of the said land

(3) Perpetual injunction restraining the defendant, his agents or servants and privies from repeating or continuing the acts of trespass to the said piece or parcel of land.

Pleadings were duly filed and exchanged. In their amended statement of claim, the plaintiffs averred in paragraphs 1 and 2 as follows:

(1) The land, the subject matter of this action, is situate at mile 20 Lagos Ikorodu Road, Lagos State and is more particularly described on the plan attached to the Deed of conveyance dated 28th day December, 1959, and registered as No. 17 at page 17 in vol. 358 of the register of Deeds kept at Ibadan at that time.

(2) The land in dispute formed part of a large area of land originally belonging under Native Law and Custom to the Aige family who have been in undisturbed possession of the same for many years.

By his amended statement of defence, the defendant admitted paragraph 2 of the Statement of Claim. Although the defendant denied paragraph 1 of the Statement of Claim, he admitted the identity of the land in dispute by implication because in paragraphs 3 & 4 of his statement of defence he averred that the land in dispute was granted to one Chief Dada and that the said land in dispute devolved on Chief Dada’s two children. In other words, both parties are agreed as to the identity of the land in dispute. The learned trial Judge also found that the defendant admitted the land in dispute formed portion of land which originally belonged to the Aige family and that the defendant also testified that the land in dispute was sold to him by Oye Dada.

The learned trial Judge dismissed the plaintiffs’ claim on the ground that only the grantees of the land in dispute as evidenced by the Deed of Grant, Exhibit A, are competent to bring an action against the defendant. The learned trial Judge in other words, was saying that the plaintiffs who are the appellants in this case have no connection with the land in dispute and are therefore not competent to maintain the action before the lower court.

It is against the dismissal of the appellants’ claim that the present appeal has been lodged.

The real bone of contention as disclosed from the argument in support of the appellants’ brief by Mr. Y.O.A. Akande is whether or not one member of a family may bring an action to protect the family’s interest over a piece of land.

In the present appeal, it appears that the issues have been narrowed down with regard to the person upon whom the onus of proof lies. The land in dispute is admittedly family land. It originally belonged to Aige. The plaintiffs are members of Aige family. The legal position is that where the plaintiffs trace their title to the land in dispute directly to one whose title to ownership has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. The original defendant in this action is not a member of Aige family, he alleged that he bought the land in dispute from the two children of Chief T.K. Dada namely Oye otherwise called Oyebanjo and Ore Olorun otherwise called Orefela. The grant of the land in dispute was made to:

(1) Efunneye