Alhaji Raji Oduola & Ors V. Mrs. B. Ashcroft & Anor (1978)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal in appeal No. CAW/97/72 judgment having been delivered on the 15th of November 1974. The case came before the Western State Court of Appeal on appeal against the judgment of the High Court of Ibadan (Abina, J.) For the purpose of this appeal, we shall restrict ourselves to the grounds canvassed before us but in doing so, we wish to refer to relevant portions of the judgment of the High Court and the Western State Court of Appeal, the High Court judgment inter alia reads:-

“In this case the plaintiffs’ claim against the defendants jointly and severally are for:

‘1. Declaration of title under Native Law and Custom to all that piece or parcel of land situate lying at Lebanon Street and Onireke Street Gbagi, Ibadan.

2. Possession of the said piece and parcel of land.

It is very important in view of paragraph 4 of the Statement of Defence in Suit 1/120/49 which the learned Chief Justice (as he then was) accepted; and also because the case of the 1st defendant throughout was that the grant to her predecessors-in-title was absolute. On sober reflection on the evidence as a whole the plaintiffs have not adduced justifiable evidence to entitle them to the declaration sought, the action must fail.

I wish to express the views that conditions in Ibadan are the same as conditions in Lagos. Applying this principle to this case I consider that since 1st defendant’s family has been in undisturbed possession of the land for over 63 years and probably 69 years that even her predecessors-in-title got it in 1907, it will be inequitable to dispossess the defendants’ family. In consequence I dismiss the plaintiffs’ claims against the defendants in entirety. Since I cannot grant declaration of title to the plaintiffs under native law and custom I am not entitled to grant them possession of the land in dispute because they were never in possession of the land at any time. on the contrary the predecessors-in-title of the 1st defendant’s family and the 1st defendant and their tenants and finally the 2nd defendant who has obtained a lease from the 1st defendant in 1946 have always been in possession. Having held that the plaintiffs were neither in actual possession or even a right to possession, according to the evidence in this case I find myself unable to say that the 2nd defendant is a trespasser because possession is an essential ingredient in the claim of trespass and I therefore dismiss the claim for trespass.

The claims of the plaintiffs are dismissed in their entirety.”

On appeal to the Western State Court of Appeal, the relevant judgment of that court reads inter alia:-

“Mr. Chukura has asked us to hold that any equitable rights that the 2nd defendant might have acquired have been defeated by fraud. We mean no disrespect when we say that we find no difficulty in rejecting this submission because no case of fraud was raised in the pleadings, no evidence of fraud was adduced at the trial and counsel did not canvass a case of fraud whilst addressing the court of trial. One of the complaints of learned counsel for the appellants, Mr. Chukura, was that the court was not entitled to speculate on the contents of the lease between the 1st and 2nd defendants. This complaint appears to us to be misconceived as the court never speculated on the contents of the lease. We have noted that mention of the lease was first made by the plaintiffs themselves in paragraph 20 of the Statement of Claim where they averred:

‘The plaintiffs have discovered that the 1st defendant demised the land in dispute to the 2nd defendant as evidenced by a deed of lease dated the 8th day of May, 1947 and registered as No. 4 at page 4 in volume 769 of the Lands Registry at Lagos now kept in the Lands Registry at Ibadan.’

Mr. Chukura advanced his arguments further by seeking to rely on the case of Isiba v. Hanson (1967) 1 All NLR. 8 where the landlords sued the customary tenants for forfeiture of customary tenancy, injunction and possession; and it was held that “Possession is of the essence of a customary tenure; so the mere evidence of possession without any other overt acts equivocally pointing to the assertion of absolute ownership to the knowledge of the plaintiffs was not sufficient to divest the plaintiffs of their radical ownership of the property.

Isiba’s case can be of no assistance to us as no question of customary tenancy did arise in the instant case. The defendants were not customary tenants of Ibikunle family. The crux of their defence was long adverse possession. In the result, the 5th ground of appeal must also fail. In support of the 6th ground of appeal, Mr. Chukura’s contention was that the learned trial Judge contradicted himself at pages 62 and 84. At page 84 lines 31 to 36, the learned trial Judge held that the area marked ‘A’ was, in effect, the property of Balogun Ibikunle by settlement and that his interest was subject to the overriding rights of the community usually exercised by the Bale and his executives. In our view, that finding in no way conflicts with page 62 where the court in considering whether the Ibadan City Council was in possession of the land in dispute, made the following observation:

‘It is worthwhile to say that Olubadan and Council even in Suit 1/120/49 never laid claim to the possession of the land in dispute”

We fail to see any contradiction in the passages referred to by counsel at pages 84 and 62. We shall now consider the 7th ground of appeal where it was contended that as no acquisition was proved and as the purpose for which the purported acquisition was made has totally failed, the land in dispute has reverted to Ibikunle family. The case of Ukwa & Ors. v. Awka Local Council & Ors. (1965) 1 All NLR 349 was relied upon by counsel. In Ukwa’s case, a parcel of land called Eke Odenigbo was granted by the plaintiffs to the people of Awka for a central market. It turned out that the site was not popular with some sections of Awka, and the market was moved to another side. Later, the Awka Local Council started to administer Eke Odenigbo by making grants of portion of it and collecting rents from the grantees. Thereupon, the plaintiffs sued the Council for declaration of title, recovery of possession, damages for trespass and injunction. The court of trial held that the plaintiffs were estopped by their conduct from asserting their right; but a contrary view was taken by the Supreme Court on appeal. The relevant portion of the judgment of the Supreme Court is at page 355 and it reads as follows:-