Alhaji A.w. Akibu V. Joseph Opaleye & Anor (1974)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C.

In suit 0080/67, tried by Kazeem J. at the Lagos State High Court held at Ikeja, judgment was entered in favour of the Plaintiffs, who are respondents before us, against the Defendant, who is the appellant, in the terms of the writ of summons for declaration of title and injunction. The appellant has appealed to this court being dissatisfied with the judgment of the learned trial judge delivered on 18th of May, 1973.

There is no dispute as to the identity of the land. The dispute arose as to the root of title of either party. The Plaintiffs claimed that the land was sold by one Cardoso to Dawodu, who mortgages to one Elliott The mortgage was purchased by Elliott and the trustees of his estate sold the land to the Plaintiffs. On the other hand, the defendant claimed to have derived his title from the children of one Makinde, who bought from Cardoso. One of the points for decision as to title to the land was whether the land in dispute formed part of the land sold by Cardoso to Dawodu, as it is not in dispute that Cardoso still has other land apart from the one sold to Dawodu.

For the plaintiffs, the averments as to their title were that the land verged brown in Ex. K was part of a large piece of land sold by the Ojomo Eyisha family to Cardoso, and that the latter sold a portion to V.A. Dawodu, who mortgaged the whole piece of land to late Elliott. On the other hand the defendant averred that, whilst he did not dispute the mortgage of a portion of the land to Dawodu, his own piece of land did not form part of the land disposed of by the later Cardoso to Dawodu. His predecessor in title bought the land from Cardoso in 1926 and later sold to one Moses Makinde in 1936, the descendants of whom sold to the defendant. It was also averred that Makinde cultivated the land, planting economic trees i.e. cocoa, kolanuts etc.

The relevant portions set out the averments in the Statement of Claim are as follows:

“4. The land originally formed portion of a vast area of land owned absolutely by the Ojomo Eyisha Family according to Yoruba Native Laws and Customs.

5. The plaintiffs became the owners in fee simple or alternatively as absolute owners under native laws and customs of the land in issue under and by virtue of the following deeds of conveyances:
6. A deed of Conveyance dated 14th June, 1958 from Adams Akinwunmi and three others to the plaintiffs.
7. A Deed of Conveyance dated 20th August, 1959 from Adams Akinwunmi and three others to the plaintiffs.
8. A Deed of Conveyance dated 22nd September, 1960 from O.S. Bads to the plaintiffs.
9. A Deed of Conveyance dated 24th March, 1962 from E.J.S. King to the plaintiffs.
10. A Deed of Conveyance dated 24th December, 1962 and registered as No. 35 page 35 in volume 621 of the Lands Registry of Ibadan.
11. Before the sale to the Plaintiffs their predecessor in title were in effective possession of the land and Plaintiffs were put in possession soon after the sale to them.
12. The Plaintiffs, later in 1958, made a plan of the building which they proposed to erect on the land and did commence the said building thereon early in September, 1959.
13. Sometime in September, 1959, the defendant, his Agents, and or Servants wrongfully entered the sold land, broke down part of the concrete walls of the said building, and the defendant forcibly planted himself on the land.
14. As a result of defendant’s action the Plaintiffs have since been unable to continue with the said building and defendant threatens to act violently towards the Plaintiffs, their servants and or agents, should Plaintiffs continue with the said building.”

The defendant in his Statement of Defence averred:

”2. The defendant admits paragraphs 1, 2 and 3 of the Statement of clairn.

3. The defendant denies paragraphs 4 and 6 of the Statement of Oaim and puts the plaintiffs to the strictest proof of the allegations therein contained.
4. The defendant is not in a position to admit or deny paragraphs 5 and 7 of the Statement of Claim but nevertheless puts the plaintiffs to a strict proof of the allegations therein contained.
5. In answer to the plaintiffs’ claims, the defendant avers that the land in dispute forms part of a large area of land which was sold and conveyed by Fafunmi as Head of Aboki Bada’s family to L.A. Cardoso. The area so conveyed is registered as No. 79, Page 301, Volume 92 of 23rd March, 1915.
6. Later, L.A. Cardoso sold the said land in dispute to one James Ode in 1926, from whom one Moses Makinde bought the same in 1936. Makinde developed the said land and enjoyed the use of same and held it for an estate of inheritance in possession until the time of his death on the 25th day of July, 1949.
7. During his lifetime, the said Moses Makinde planted cocoa, kola orange and pear trees on the land and was reaping all of them for his own benefit and when he died the said land with the crops thereon was inherited by his children and they too continued to enjoy the use of the land and the crops on it without let or hindrance from either the plaintiffs or his alleged predecessorsin-title up to the time they sold it to the defendant in August, 1959, and conveyed the same to him by a deed registered as No. 60 at Page 60 in Volume 349 of the Lands Registry of Ibadan.
8. The defendant’s predecessors-in-title were in effective possession of the land before the sale and the defendant was put in possession soon after the sale to him and has since remained in possession enjoying the use of the land and the crops on it.
9. The defendant admits that by September, 1959, when he had bought the land in dispute, he entered into possession as was his right by purchase and when he noticed that the plaintiffs were trespassing on it by entering upon it cutting down his economic crops thereon (e.g. cocoa, kola, orange, pear and palm trees) and generally laying it waste, he stopped his agents having made reports to the Police about their activities on the land.
10. The defendant will contend at the trial that he and his predecessors in-title have been on the land openly using the same as absolute owners for at least forty years by planting economic trees thereon and enjoying the fruits thereon all the time without any challenge by the plaintiffs’ alleged predecessors-in-title and also by defending it against trespassers and other intruders, and that therefore the plaintiffs’ predecessors-in-title are estoppel from asserting any claim to it (if they have any, which is denied) and thus have no property in it which they can validly transmit to the plaintiffs.
11. The defendant also relies on all legal and equitable defences open to him as laches, acquiescence, standing-by, stale claim and the Statutes of Limitation. “The learned trial judge, after reviewing the evidence before him, resolved the claim in his judgment thus:

“As between the plaintiffs and the defendant, I am therefore satisfied that the plaintiffs have established a better title to the land in dispute.

The defendant also claimed that he and his predecessors-in-title had been in undisturbed possession of the land in dispute since Cardoso bought it from Fafunmi in 1915 until the plaintiffs were alleged to have trespassed on the said land in 1960. I have already held that the land in dispute was part of the portion sold by L.A. Cardoso to W.A. Dawodu in 1921. Hence the Cardoso Family would have ceased to be in possession since then. There is also nothing besides the evidence of Ajibola Makinde (D.W.3) and Alhaji Tmu Davies (D.W.5) which I disbelieve to show that either James Ode or even the Makinde were ever in possession of the land until 1959. If at all the defendant was ever in possession of the land, it was when he purported to have bought it from the Makinde in 1959. But,the plaintiffs first purported to have bought the land since 1958 and 1959 when they were put in possession by the Ojom Eyisha Family-See Exhibits “A” and “B”, and they claimed to have found the land uncultivated at that time. Although there might have been some wild plantations on the land in dispute prior to 1959, I am satisfied from the evidence before me that the plaintiffs were in possession of the said land prior to the defendant. Hence the defence of long possession raised by the defencer also fails.

In the circumstances, the plaintiffs are entitled to the declaration sought and they are hereby declared owners in fee simple of the land in dispute situate at Apesin Street, Ewe Aigbo, Mushin in Ikeja judicial Division.

As regards the claim for an injunction, since the plaintiffs have been declared the owners thereof and it is established that. the defendant had ousted their possession, the defendant his agents and or servants are thereby restrained forthwith from continuing to trespass on the land in dispute.

The defendant to pay costs assessed at N200 to both plaintiffs.”

At the hearing of this appeal, learned counsel for appellant applied and was granted leave to file and argue for fresh grounds of appeal in substitution for those originally filed with the notice of appeal. His main complaint was that the learned trial judge failed to consider the unchallenged evidence before him, stretching from 1926 as pleaded and deposed to by the appellant and his witnesses with regard to his defence of long possession. The complaint is embodied in the two grounds of appeal, grounds 3 & 4 which read:

“3. The finding of the learned trial judge that the plaintiffs were in prior possession of the land is

(a) against the weight of evidence;

(b) inconsistent with the plaintiffs’ case when based, as the learned trial judge did, on Exs. A & B (Eyisha conveyances) of 1958 and 1959, the case of the plaintiffs being that the Eyisha Family had sold the land 59 years ago to Cardoso,and he thereby came to a wrong decision in holding that the defendant interfered with the possession of the plaintiffs (p. 51 11. 20).

4. The verdict is against the weight of evidence.”

The evidence which the defendant called for proof of long possession is that by the 3rd defendant’s witness, Ajibola Makinde, the predecessor in title of the defendant and a descendant of Moses Makinde who originally purchased the land from James Ode in 1936 and who was present at the negotiations; the 4th defendant’s witness, a son of Cardoso, also gave evidence of the sale of the land in dispute to James Ode ‘around’ 1926; 1st defendant’s witness, a former customary court judge, gave evidence of his inspection of the land The learned trial judge did not evaluate the evidence of these witnesses and it was contended that, since such evidence was not seriously challenged, the issue of long possession as.raised in the defence should have been considered and determined by the trial judge.

We think it necessary to set out at some length the evidence referred to and which read:

“3RD DEFENDANT S WITNESS; AJIBOLA MAKINDE. I am a farmer, I know the defendant. I know the land in dispute. It belonged to my father.

My father bought it in 1936 from one James Ode. I was present when my father was purchasing the land. It was thick bush when my father bought it. My father whose name was Moses Makinde was a farmer. After the land was purchased, my father-cleared it and planted thereon Cocoa seedlings, Kolanut, pear and citrus seedlings. We also dug a well on the land and a hut of two rooms was built thereon with corrugated iron sheets. The cocoa trees did not start to yield fruits until 5 weeks later. Thereafter we used to reap the fruits from the trees and treat them in the hut. In 1947, my father instructed Bagan Benjamin, a licensed Surveyor to survey the land. Nobody disturbed us while the survey was going on. My father was on the land for 13 years ,before he died in July, 1949. Nobody disturbed my father on the land before he died. After the death of my father, his children inherited the land and we continued to cultivate the land and reap the fruits thereon.”

“4TH DEFENDANT’S WITNESS: PHILOGONIUS ABIODUN CARDOSO. I am a retired Civil Servant. When I was in the Civil Service, I was a Computer in the Surveys Department. I can read plans. I know the subjectmatter of this action. The land in dispute is at Idi-Araba. It originally belonged to my father before it changed hand. My father bought the land from Fafunmi Head of the Aboki Bada Family. Exhibit “F” is the Deed of Conveyance from Fafunmi to my late father and I recognise the plan attached to it. Exhibit “G” is the Deed of Conveyance executed by my late father to the late W. A. Dawodu. Exhibit “N” is the allotment plan of the land of A. Dawodu. My father sold to several persons besides Mr. W.A. Dawodu. He sold to the Labinjo’s family, to Oguntola Samuel and James Ode. He sold to James Ode around 1926. I was present when my father sold the land to James Ode. My father died in 1940. My. jather gave James Ode a receipt when he sold land to him. I don’t know whether my father conveyed the land to James Ode as he did in the case of W.A. Dawodu. It was after several years that the receipt which my late father gave to the late James Ode was brought to the Cardoso family by the defendant because he had bought the land from Mr. Makinde and he wanted our family to execute to him a Deed of Conveyance.

As a result of so many inquiries from my family, we publicised in l961. This is one of such Notices. Tendered. No Objection. Admitted and marked as Exhibit “EE”. As a result of Exhibit “BE”, the defendant came to us. with several others for Deeds of Conveyance. The defendant brought a receipt and a copy of his plan. The defendant brought Exhibit “CC” to us for ratification……

CROSS-EXAMINED BY MISS KUYE: I cannot remember the dates on the receipts which the defendant brought to. us before we executed Exhibit “FF” in his favour. I knew that my father sold land to W.A. Dawodu. I agree that the land in dispute is adjacent to the Lagos Teaching Hospital. I know that the Ojomo Eyisha Family as well as those to whom our father sold land in the area were paid compensation in respect of the acquisition for the Lagos University Teaching Hospital.”

“5TH DEFENDANT’S WITNESS,’ ALHAJI YINUSA DAVIES. I am a Driver Mechanic. I know the land in dispute. The land now belongs to the defendant. He had been the owner since 1959. I knew who was on the land before the defendant got there. The children of Makinde were formerly there. I got to the area in which the land is in 1953, and I met the children of Makinde on an adjacent parcel of land to mine. The children were farming on their land and planting thereon, cocoa trees, citrus trees, kolanut trees. When the Makinde’s children were on the land, no one disturbed them on the land. The children of Makinde brought the defendant to my house and introduced him to me as the purchaser of their father’s farm land. The defendant started to reap the crops on the land. After the defendant had started to use the land, the two plaintiffs came to meet me in my house and they said that they wanted to commence building operation on the land. I asked them who sold it to them and they said that the Eyisha Family did. Then I told them that the owners of the land had sold it to the defendant. Then they left. Later they returned and told me that the Eyisha Family said they should not listen to me and that they owned the place and the plaintiffs could continue their building work thereon. The plaintiffs then asked me to get them labourers so that they might uproot the crops on the land and I got them six labourers who cut down the cocoa trees, kolanut trees and the citrus trees on the land. It was thereafter the plaintiffs started their building operation on the land Later the defendant came on the land and saw the plaintiff’s building foundation and he filled it up. The plaintiff’s later came to me and asked me to take them to the defendant to beg him, and I did. One of my friends also accompanied us to the defendant’s house. The defendant asked us to go back to the land to estimate what had been destroyed on the land before coming to him for further discussion. We did not go back to the defendant, but the plaintiffs later told me that the Eyisha Family had told them that the defendant had no interest on the land and they (the plaintiffs) could continue their building works on the land. The same day, the plaintiffs dug up their foundation and continued their building up to D P C. level. But when the defendant came the following day, he stopped them from continuing as a result of which the defendant was reported by the plaintiffs to the police. Subsequently the matter went to the Customary Court.

CROSS-EXAMINED BY MISS KUYE: I did not see the plaintiffs when their Surveyor came on the land. The Makinde’s children were storing their fann products in my house because their hut on the land had fallen down. The Makinde’s children were not living on the land Some of them were coming from Surulere while their eldest came from Otta. I did not help them to dig a well on the land but l supplied them with 6 labourers. The plaintiffs brought the blocks with a lorry. They did not make them on the land. I told the two Caretakers whom the defendant put on the land about all that happened. I knew that Olarewaju Makinde cut the cocoa trees in front of my house and I reported the matter to the defendant Where Olarewaju Makinde cut the trees was different from where the plaintiffs cut trees.”

“1ST DEFENDANT S WITNESS: JOHN OGUNJIMI FANEYE. I was at one time the President of the Customary Court Grade B Mushin. I am on a subpoena. I know the parties in this case. I remember a Criminal Charge in which the defendant was charged before my Court as a result of the complaint made by the plaintiffs. During the proceedings, I had an occasion to visit the scene. When I got there in 1959, I found a new foundation of a building being erected and around it were some felled trees like Cocoa trees, Kolanut trees and other economic trees. The defendant complained that those trees belonged to him. The plaintiffs also complained that his (sic) foundation on the land was damaged. Since both of them denied the other person’s allegation, I went to the scene in order to satisfy myself I found that there was some truth in the allegation that some live trees were felled. I also found that the fresh blocks laid on the old foundation had been removed. I later wrote a judgment in the case. This is a certified True Copy of my judgment. Pages 8 and 9 of certified True Copy of proceedings and judgment in Charge IKD/1140/CR/59-Commissioner of Police vs. Alhaji Akibu and 2 Others tendered.-No objection. Admitted and marked Exhibit “E”.

CROSS-EXAMINED BY MISS KUYE: It would not swprise me to hear that long before I visited the land in dispute, the defendant had already written to one Makinde that he had cut kolanut trees on the land.

PUT: You did not see any felled Kolanut trees on the land in question.

ANSWER: I say Kolanut trees and I put everything in my judgment-Exhibit “E”.”

We have earlier on referred to the pleadings and the evidence of possession adduced before the learned trial judge on the issue as to the plea of long possession raised in the defence. Although this court rehears a case on appeal it does this only on the records and, where it is quite clear that evidence had been led in the lower court which establishes a fact, it will make the necessary finding which the lower court failed to make: Thomas v. Thomas (1947) A.C. 484, at pp. 487, 488; also Fatoyinbo v. Williams (1956) 1 ES.C. 87. it is open to this court to decide such issue especially as in this case where the defence of long possession if established is sufficient to defeat the claim of the plaintiff.

It is settled law that, where long possession is established in evidence, the court will not normally exercise its discretionary right of granting declaration of title in favour of a party not in possession. We do not intend, however, to restate the law in this case as this has been adequately done in the following cases:

1. Akpan v. Cookey Gam (1913) 2 NLR 97
2. Saidi v. Aldnwunmi (1956) 1 FSC 107
3. Edu v. Cole (1956) LLR 52….
4. Alcuru v. Olubadan-in-Council (1954) 14 WACA 5

With respect to the learned trial judge in this case, we feel that the use of the expressions ‘I believe’ and ‘I do not believe’ without really evaluating the evidence of Vital witnesses does not stop an appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions. It is also settled law that it is the duty of the trial judge to evaluate relevant and material evidence before him and decide on the issues as raised on the pleadings before him. In his case we are satisfied that the learned trial judge has not evaluated the evidence of long possession, which in our view was clearly established before him.

Mr. Sikuade, learned counsel for the respondents, sought to distinguish the possession which the learned trial judge considered in the case before him as not amounting to long possession. He contended that the erection of a foundation of a proposed building by the respondents, an act which on the evidence constitutes a trespass, is sufficient possessory right which should be considered as being in conflict with the possession of the appellant who has no tide. He further contended that, if this court agrees with this submission, then his clients must be considered to be in prior possession. At the material time, the respondents had only Exhibits A, B and C which were conveyances from the Ojomo Eyisha family purporting to vest the land in them, which they themselves discovered to be ineffective as the Ojomo Eyisha had previously sold the land in question; they discovered three years later that the Ojomo Eyisha family had no right whatsoever in the property. It was because of this that the respondents went to obtafu two conveyances of the land, one from Mrs. Elsie King, the sole survivipg executrix of the estate of Elliott, and another conveyance from the trustees of the estate of Elliott who were appointed in 1959 to take over the administration of the estate from Mrs. King. It is, therefore, apparent that, on their own pleadings, the exercise of a possessory right in 1958 was insupportable and wrongful because conveyances from the Ojomo Eyisha family were worthless. In this state of affairs the contention of prior possession or exercise of possessory right in 1958 or 1959 on which learned counsel for the respondents based his argument lacks any substance. Learned counsel for the respondents admitted that the learned trial judge failed to evaluate the evidence of long possession and asked us to enter a non-suit We are unable to agree with this last submission.

We are satisfied that the plea of long possession has been established by the appellant and that the learned trial judge was in error to have granted declaration in favour of the plaintiff. The appeal, therefore, succeeds and it is allowed. The judgment of the learned trial judge (Kazeem J) delivered on 18th May, 1973, including the award of costs in favour of the Plaintiff/Respondents, is hereby set aside. We hereby order that the plaintiffs’ claim in the lower court be and is hereby dismissed.

We award costs assessed at N200 in the lower court and in this court at N184 in favour of the Defendant/Appellant against the Plaintiffs/Respondents. And this shall be the judgment of this court.

Other Citation: (1974) LCN/1853(SC)