A.I.B.A. Kabiawu (For Himself And Members Of Kabiawu Family) V Lawal (1963)

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Coker J.S.C.

The appellant was the plaintiff in an action against the respondent, tried in the High Court of Lagos and his writ, as amended, reads as follows:-“The plaintiff’s claim against the defendant Is for:-

(a) Declaration of title to the said piece or parcel of land under native law and custom

(b) Possession of the said land which the defendant wrongfully and unlawfully entered into and took possession thereof.

(c) The sum of £200 (Two hundred pounds) damages for trespass and injunction restraining the defendant and his agents from further acts of trespass on the said land.” Pleadings were ordered and delivered and after hearing both parties, Lembo, J., in a considered judgment dismissed the case of the appellant with costs.

As clearly stated on the writ and on all subsequent processes, the appellant sued for himself and the Kabiawu family, his immediate predecessor in title being one Abdulai Jinadu (alias Abdulai Jinadu Kabiawu) who died in Lagos intestate and was survived by the appellant and other children upon whom, according to the evidence, the property devolved as family property.

According to the pleading and the evidence given in support of his case, the appellant’s case is that the land in dispute originally belonged to the Eyisha family and it was held by the court that the sale to Oseni Falade by one section only of the family was Invalid (see Exhibit A); that following this and other similar unauthorised sales of family lands by the Fafunmi branch, the Osun Apena branch instituted legal proceedings in 1915 (Suit No. 113 of 1915) (Exhibit A) in order to halt such sales but that this action was compromised on the terms inter alfa, that those to whom lands had been so sold (and this included Oseni Falade) should pay specified sums of money to the osun Apena branch who then undertook to “put the said purchasers who pay in accordance with the terms of this agreement into possession of the lands purchased and to execute conveyance for the said lands when called on”.

It was also part of the appellant’s case that Oseni Falade paid the amount shown against his name, i.e. £10, to the solicitors of Osun Apena branch; that he, along with others, thereafter successfully moved the court for an order that he should be put in possession of his land (Exhibit B); that he later sold the land in dispute to one Arinola who thereafter sold to Abdulai Jinadu kabiawu, the father of the present appellant. The appellant also contends that he and his predecessors in title have always been in possession of the land and have exercised manifestly rights of possession thereon until the year 1961 when the respondent disturbed his possession and Indeed took possession of the land.

The respondent on the other hand claims that the Eyisha family, the original owners of the land, sold the land in dispute to one Gbadamosi Oladlpo (see Exhibit H dated the 9th December, 1953) and that Gbadamosi Oladipo later sold the land to him the respondent In 1961 as per the conveyance Exhibit K dated the 10th November, 1961. He also claims to have been in possession of the land in dispute as well by himself as by his predecessors in title.The learned trial Judge in the course of his judgment expressed some doubts as to whether in view of the fact that no plans were attached to the application for an order for possession (i.e.,Exhibit B) it was established by the appellant that it was the land in dispute into which Oseni Falade was let into possession by the order made in Exhibit B.

He eventually held that even if it was, Oseni Falade had at best acquired only an equitable interest in the land; that the respondent and his predecessors in title had no notice of his equitable interest as he was not in possession and that the legal estate of the respondent founded upon the conveyance from the Eyisha family (that is Exhibit H) must prevail over the equitable Interest which was all that Oseni Falade had.

Before us it was contented on behalf of the appellant that the learned trial Judge was in error of law since the radical title of the Eyisha family to the land in dispute was one under native law and custom and the sale to Oseni Falade envisaged the disposal only of a similar interest; and that on completion of such sale by putting the purchaser in possession, the absolute interests of the Eyisha family under native law and custom are exhausted and no question arises of their having only transferred the equitable interest and retaining in themselves the legal estate.

It was also submitted that despite the phraseology employed in the conveyance (Exhibit C) to the effect that an estate in fee simple was being transferred, the Court should hold that what the grantors therein could only transfer and what the conveyance infect transferred was the absolute Interest under native law and custom bought from the Eyisha family. On this point learned counsel for the appellant referred us to the cases of Oguntokun v. Amodu Rufai (1945) 11 W.A.C.A. 55 and Ogunbambi v. Abowaba (1951) 13 W.A.C.A. 222.

We are of the view that these contentions are well founded. Undoubtedly the Eyisha family owned the land by virtue of native law and custom and where the entirety of their interests in land under such native law and custom is sold, it cannot be argued that they retained any further Interest in such land. A valid sale or transfer of the absolute interest under native law and custom completely exhausts the rights of the vendor and no question arises of transferring only some parts or aspects of those Interests.

Now as regards the sale to Oseni Falade by the Eyisha family, the position is clear. Oseni Falade was one of those to whom abortive sales of Eyisha family lands were made by only one section of that family. His name appears as No. 33 on the list attached to the terms of settlement in the proceedings, Exhibit A, and it was shown there that on payment of the amount of £10 he should be entitled to be put in possession and also to call for the execution of a conveyance in his favour. The proceedings, Exhibit B, show that he was one of those who on the 7th September, 1915, obtained an order for possession of their lands purchased from the Eyisha family. The appellant’s case is that Osenl Falade paid this amount of £10 and this much was admitted by the witness Odewale Savage Bads, the only member of the Eyisha family who gave evidence on behalf of the respondent. On these facts, which were established at the trial, there can be no doubt that on the 7th September, 1915, the original invalid sale to Oseni Falade priority to 1913 was validated and his erstwhile wrongful possession legalised by order of court. As from that date he acquired the absolute interests under native law and custom of the Eyisha family in the land in dispute.