Adeniyi Olufemi Olumide & Ors. V. Dr. Tosin Ajayi (1997)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A.

The parties in this appeal from a judgment of Ajao Oshodi J. delivered on 6 December, 1991, are agreed that the Kuyasi Awushe family is the original owner of the land in dispute. That family owned a large tract of land at Onigbagbo Village, Ikeja, Lagos. The land in dispute formed part of it and according to a composite survey plan No. JO 98/88, exhibit J, produced by the plaintiffs/appellants, the said land is more particularly shown to be along Opebi Road.

A layout plan of the large tract of land was made by Kuyasi Awushe family in October, 1975 as shown in exhibit H. It was thereafter laid out into residential plots. Part of the land use thereby created is reflected in a layout survey plan No. JO 87c/75, exhibit F, drawn also in October, 1975. It shows what is referred to as Block II which includes, among others, plots 5, 6, 7 and 8.

One Mr. Abiodun Bababunmi Olaiya, a Solicitor, as owner of a parcel of land described in a deed of conveyance dated 25 October, 1975 and registered as No. 100 at page 100 in volume 1525 of the Register of Deeds kept in the Lands Registry in the office at Lagos, exchanged the same with the Kuyasi Awushe family for plots 5, 6, 7 and 8 in Block II and plot7 in Block VIII in addition to paying the said family the sum of N1,000.00 naira. In other words, Mr. Abiodun Bababunmi Olaiya acquired those plots from Kuyasi Awushe family. This is evidenced by a deed of conveyance dated 13 February, 1976 and registered as No. 93 at page 93 in volume 1542. The registration actually took place on 19 February, 1976: see exhibit B.

The 1st and 2nd plaintiffs bought plot 7 in Block II from Mr. A.B. Olaiya as evidenced by a deed of conveyance dated 20 May, 1976 and registered as No. 92 at page 92 in volume 1560. The registration was done on 21 May, 1976: see exhibit E. The 3rd plaintiff bought plot 5 in Block II from Mr. A. B. Olaiya by deed of conveyance dated 10 March, 1977 and registered as No. 28 at page 28 in volume 1614 on 16 March, 1977: see exhibit C.

Plots 5 and 7 in Block II are contiguous. The 3rd plaintiff erroneously developed plot 7 instead of his own plot 5. However, it was mutually agreed between the 1st and 2nd plaintiffs on the one part and the 3rd plaintiff on the other part to swap plots. This agreement had not yet been evidenced in writing when the defendant, claiming to have bought from the Kuyasi Awushe family, now encroached substantially partially on both plots 5 and 7 as shown in the composite survey plan No. JO 98/88, exhibit J.

An action was begun by originating summons, first by the 1st and 2nd plaintiffs, who are husband and wife, against the present defendant and the 3rd plaintiff (who was then the 2nd defendant): “for the determination of the following questions:

1. Ownership of the said parcel of land designated as Plot No.5, Block II and situate at Onigbagbo Village Ikeja, Lagos.
2. Damages of N100,000.00 for continuous and repeated trespass to the said parcel of land by the 2nd Defendant.”

Somehow, the learned trial judge ordered pleadings to be filed. The said 2nd defendant was eventually made the 3rd plaintiff.

The statement of claim was amended a couple of times. The last one was filed on 3 June, 1991. Although the said statement of claim as amended was, with due respect to counsel who settled the pleading, rather inelegant, one is left in no doubt that the two plots in issue are plots 5 and 7 which the plaintiffs together claim as against the defendant. The relevant paragraphs of the said pleading which indicate this when read together are paragraphs 16, 17, 19, 22 and 36. I shall set out only paragraphs 19 and 36:

“19. The Plots designated as No.5 and No.7 were conveyed by the same vendor, A.B. Olaiya (Deceased) to the Plaintiffs under the same root of title.

36. The Plaintiffs will at the trial rely on the site Plan, Letter dated 23rd August 1988 written to the Defendant, Photographs of the site, the Deeds of Conveyance, Composite Plan of the land dated 23rd of December, 1988 and all relevant documents to prove their case.:

The reliefs as finally claimed were a bit tersely worded. They state:

“AND the Plaintiffs claim:

1. Declaration of title
2. Possession of the land and premises
3. Damages of N100,000.00 (One Hundred Thousand Naira) from the Defendant. ”

It should be remembered that there are three plaintiffs and so the reliefs sought are for them all. However, in the course of address, learned counsel for the plaintiffs abandoned relief 2, i.e. possession of the land and premises. It is important that I emphasize that although the action was begun by originating summons supported by affidavit evidence, it ended up with pleadings filed by both sides as already indicated.

Evidence was led by the plaintiffs to establish the titles they acquired upon the facts already stated above. In regard to the deed of conveyance relied on by the defendant, although it was dated 6 January 1976 and registered as No. 50B at page 50B in volume 1628, it was registered on 24 August. 1977: see exh. N. The plaintiffs in their pleading attacked the genuineness of the deed of conveyance and alleged that the registration was obtained by fraudulent means. The deed of conveyance in question was tendered through p.w.4, Mr. Olatunji Adeyemi, the Land Registry Assistant, under cross-examination by the defendant’s counsel. He said he carried out a search on the instructions of the Registrar of Title following an inquiry made by the plaintiffs’ counsel.