Dr. A.O. Adebiyi V. Ivy Yewande Williams & Ors (1988)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A. 

Does a plaintiff have to claim for a rectification of the register of title relating to a grant of statutory right of occupancy made in favour of the defendant in his action for a declaration that he, the plaintiff, is entitled to a statutory right of occupancy to the parcel of land in dispute? What is the legal position when the plaintiff establishes that the defendant’s land in a conveyance does not fall within the land in dispute? These and mare are the questions which have arisen in this appeal.

By a Writ of Summons dated 4th March, 1982, and as subsequently amended by leave of court, the plaintiffs as administratrix and administrator respectively of the estate of Chief Ayodele Williams (deceased) claimed for (1) a declaration that they were entitled to statutory right of occupancy to the parcel of land which situate at Owopetu Street, Off Ikorodu Road, Mushin, Lagos relating to the Deed of Conveyance dated 25th November, 1959 and registered as No.45 at page 45 in Volume 352 of the Lands Registry in the office at Ibadan and now kept in Lagos; (2) the sum of N5,000.00 being special and general damages for trespass committed and still being committed by the defendant; (3) a declaration that the Certificate of Occupancy dated 26th June, 1981, and registered as No.94 at page 94 in volume 1981B of the Register of Deeds at the Lagos State Land Registry obtained by the defendant, was irregularly obtained and therefore null and void; (4) a perpetual injunction to restrain the defendant and his servants or agents from committing further acts of trespass to, the said parcel of land.

Put briefly, it was the case of the plaintiffs, as pleaded in their statement of claim and supported by evidence of three witnesses, that a large tract of land, of which the land in dispute farmed a part, belonged to. Late Chief Ayodele Williams by a Deed of Conveyance, Exhibit 1, dated 25th November, 1959 executed in his favour by one Madam Rebecca Olayinka as attorney of Cyril Adeyemi St. Mathew Daniel, the original owner. The deceased took possession, planted cash craps and remained on the land until he died in 1973. No. one challenged his possession. He died intestate. Letters of administration to administer his estate, bath personal and real properties were granted to both plaintiffs by the Probate Registrar High Court of Justice, Lagos State.

The land was fenced round by the plaintiff with cement blocks up to.

D.P.C. level and the upper part with barbed-wire. In 1982, the defendant and his servants or agents destroyed the fence; and inspite of the fact that he was confronted and challenged by the plaintiffs, the defendant drove the plaintiffs’ labourers away from the land. Even though the matter was reported to the police the defendant continued with his acts of trespass and put up a building on the land.

The plaintiffs’ investigation revealed that the defendant had obtained a Certificate of Occupancy in respect of the land. The first plaintiff applied for and obtained a copy of the defendant’s Deed. On her instruction Joel Ogunsanya, a licensed surveyor who testified as P.W.3, prepared a composite plan Exhibit 10 from the survey plan of Exhibit 1, the Deed of Conveyance in favour of Late Chief Ayodele Williams, and the Survey Plan of the defendant’s Deed, Exhibit 9. The said composite plan showed that the land covered by the defendant’s Survey Plan fell on an already developed portion of the large tract of land of Late Chief Ayodele Williams, but completely outside the area in dispute. In effect, the defendant was operating outside the portion of land purportedly conveyed to him by virtue of the Certificate of Occupancy Exhibit 9.

It was however the case for the defence that the defendant purchased the land in 1978 from one Madam Bernice Adeotun who is now dead; and was given two receipts Exhibits 11 and 11A. The transaction was witnessed by the son of the vendor Mahatan Akingbehin, D.W.2. After he had been shown the land by D.W.2 the defendant instructed the licensed surveyor to produce a Survey Plan. It was with the plan produced by the surveyor that he obtained the Certificate of Occupancy Exhibit 9 from the Lagos State Government on 26/6/81, registered as No.94 at page 94 volume 1981B of the Register kept by the Land Registry in Lagos. His vendor was a member of Madam Tinubu family. It was her share of Late Madam Tinubu estate allotted to her in 1964 that she sold to the defendant.

On taking possession, the defendant fenced and erected a shed thereon and put a caretaker on it. He laid the foundation of a building on 15/10/81. He had commenced building and had reached the roofing level when the first plaintiff challenged him. There was no fence surrounding the land when he took possession. In his judgment dated 26th July, 1984, the learned trial Judge believed the first plaintiffs testimony and that of P.W.2, Isaac Adebayo Sobayo who was a Litigation Clerk to Late Chief Ayodele Williams and the caretaker of his landed property that the land was fenced round with cement blocks and barbed wire and that it was in that state when the defendant and his servants or agents destroyed it in 1982. He accepted the evidence of P.W.3, the licensed surveyor whose evidence relating to the composite plan Exhibit 10 was not challenged.

The learned trial Judge went on to hold that on the preponderance of evidence the plaintiffs as administratrix and administrator of the estate of Late Ayodele Williams were entitled to a declaration of title to a statutory right of occupancy to the parcel of land covered by the Deed of Conveyance Exhibit 1. Although he refused to declare as null and void the Certificate of Occupancy Exhibit 9, he held that the plaintiff had a better title to the land than the defendant and that the land was not vested in the defendant on 29th March, 1978, being the date of the commencement of Land Use Act. He was of the view that the land could not have been vested in the defendant as at the date of the Certificate of Occupancy, Exhibit 9, on the principle of nemo dat quod non habet. In the alternative, the learned trial Judge held that, on the assumption that the grant to the defendant by virtue of Exhibit 9 was valid, the land in dispute was not the land granted to him.

Although he was satisfied that trespass was established by the plaintiffs, the learned trial Judge held that the claim to special damages was not strictly proved and awarded only N250.00 as general damages. He granted the prayer of the plaintiffs for injunction, and accordingly made an order restraining the defendant by himself, his servants or agents from going on the land of the plaintiffs covered by Exhibit 1.

Dissatisfied with the decision, the defendant appealed to this Court on 2/8/84 on the ground that “the decision is against the weight of evidence.” In this Court, the appellant with leave of court filed three additional grounds of appeal which were copiously set out. He complained in effect against (1) the declaration made in favour of the respondents when in the light of the evidence the appellant held an indefeasible title to the land; (2) the acceptance of the evidence of P.W.3 without the learned trial Judge considering the peculiar facts of the case; and (3) the interpretation by the learned trial Judge of Section 50(1) of the Land Use Act in relation to the issues joined in the matter.

Learned Counsel for the appellant Mr. Solarin formulated six issues for determination as follows:

“(1) Whether in view of Sections 1 & 2 of the Land Use Act the defendant (Appellant) could be deprived of possession of the land in dispute due to a mistake or misplacement of the land on the plan attached to the Certificate of Occupancy when the identity of the land claimed by the parties are not in dispute.