Alhaji Sikiru Gborigi Adelakun & Anor V. Ganiyu Muyibi Bakare Iseogbekun & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

This is an appeal against the judgment of the Lagos High Court sitting in Ikeja delivered on 6th February, 1995. The appellants who were plaintiffs in the court below took out a writ of summons against the 1st to 3rd respondents who were the original 1st to 3rd defendants in that court. Pleadings filed and exchanged between the plaintiffs/appellants and the original 1st to 3rd defendants/respondents were later, with the leave of the court, amended. Trial of the case commenced. At a stage in the cause of trial the 4th to the 6th respondents applied to be joined as defendants in the case, on the 11th of April, 1990. Consequently, the parties had to amend their pleadings. The 4th to 6th defendants/respondents also counterclaimed.

The plaintiffs/appellants’ sought per their amended writ of summons, the following reliefs against the defendants/respondents jointly and severally:

(1) A declaration that the hereditaments situate and known as No. 24 Onisemo Street, Lagos is the family property under Yoruba Native Law and Custom of the descendants of Ajegun Bashua (deceased).

(2) Possession of such portion of the said hereditaments as are in the possession or control of the defendants or any of them

(3) And the account of all rents and profits collected by the defendants from tenants on the said hereditaments and payments over of the said rents and profits to the plaintiffs.

The 4th to 6th defendants, by way of counter-claim endorsed in paragraph 37 of their amended statement of defence claim the following reliefs:

(1) A declaration that the Bashua Chieftaincy Family is the person entitled to statutory right of occupancy to the property known as No. 24, Onisemo Street, Lagos.

(2) A declaration that the plaintiffs and the 1st to 3rd defendants held the property No. 24, Onisemo Street,

Lagos under the Native Law and Custom of Lagos and as allottees of Bashua Chieftaincy Family Land.

(3) Forfeiture of the rights and interests of the plaintiffs and the 1st to 3rd defendants in respect of 24, Onisemo Street, Lagos.

(4) Possession of the said property No. 24, Onisemo Street, Lagos.

After the exchange of the final pleadings, the case thereafter proceeded to trial. The plaintiffs/appellants gave evidence in proof of their case so also did the 1st and 3rd defendants/respondents in substantiating the averments in their amended defence. The 4th to 6th defendants/respondents/counter-claimants called evidence to prove the averments in their amended statement of defence and counter-claim. At the end of the trial and after taking addresses of counsel on both sides, the learned trial Judge, in a reserved judgment delivered on the 6th of February, 1995 dismissed the plaintiffs’/appellants’ case in their entirety. Equally, the counter-claim of the 4th to 6th defendants/counter-claimants filed against the plaintiffs/appellants and the 1st, 2nd and 3rd defendants failed. I pause to say that even though the name of the 2nd defendant featured throughout the trial of the case up till now, there is no evidence that any pleadings was filed on her behalf in reaction to the plaintiffs’ /appellants’ claim and the counter-claim of the 4th to 6th defendants/respondents/counter-claimants.

Dissatisfied with the decision of the trial court, the plaintiffs/appellants lodged an appeal against the same to this court. The notice of appeal carries four grounds. Perhaps I should say that there is no evidence that the 4th to the 6th defendants/counter-claimants appealed against the dismissal of their counter-claim. In their brief of argument the plaintiffs/appellants identified three issues for determination; and they are:

(1) Whether or not the learned trial Judge misconceived the appellants’ claims as contained in their writ of summons and their amended statement of claim.

(2) In view of the evidence of numerous acts of possession and ownership adduced at the trial by the appellants whether the learned trial Judge should not have found for the appellants.

(3) Should the learned trial Judge not have found for the appellants having not been satisfied with the deeds of conveyance relied upon by the respondents and having rejected the traditional evidence relied upon by all the respondents?

The 1st and 3rd respondents also raised three issues for determination and as set out in the brief of argument they are as follows:-

(1) Whether on the pleadings, evidence and circumstances of this case the learned trial Judge did correctly treat the appellants’ claim.

(2) Whether on the state of the pleadings, evidence and findings by the learned trial Judge, the appellants did discharge the onus of proof cast on them to entitle them to judgment.

(3) Whether the learned trial Judge was right in dismissing the appellants’ claims.

Also the 4th to the 6th respondents identified three issues arising for determination: and as set out in their brief of argument, they are in the following terms:

(1) Whether the appellants established their claim by discharging the burden of proof.

(2) Whether it is necessary to call Aromire Family to support the claim of grant to Bashua Chieftaincy Family when the family supported their ownership with the crown grant.

(3) Whether in the light of the findings of the learned trial Judge, the court should enter a non-suit instead

of dismissal.

I have had a careful study of the three sets of issues formulated by the three sets of parties to this appeal, in my view they all have a common theme; it is whether on the totality of the evidence before the court, the plaintiffs/appellants are entitled to judgment. Since an appeal entails the re-hearing of a case, I shall start by examining the pleadings of each set of parties to see what was their case and relate same to the evidence led by each. The case of the plaintiffs/appellants as could be gleaned from their pleadings is that they as brother and sister, are the only surviving principal descendants of one Ajegun Bashua, their ancestor and the original owner of the property in dispute No. 24 Onisemo Street, Lagos. Upon the death

of Ajegun Bashua many years ago, he was survived by two children Sule and Sinotu Abiodun; both of who were in possession of the said property until they also died. Sule died without any issue but Sinotu Abiodun was survived by a daughter named Alhaja Suwebatu Adufe who died on the 20th of February, 1981 survived by the present plaintiffs/appellants. Before her death, Alhaja Suwebatu Adufe exercised diverse acts of ownership and possession on the said property. It is their further case that the 1st and 3rd defendants/respondents are descendants of one Bakare Iseogbekun an Arota of Ajegun Bashua. The said Bakare Iseogbekun was permitted to continue to live in the house by the children of Ajegun Bashua following the death of the latter. The same grace was extended to the children of Bakare Iseogbekun following this death. They lived in the house rent free with instructions to collect rents from a tenant put in a room apartment in the said building and utilise the proceeds to pay the water rates for the whole house. One Muibi who was one of the children of Bakare Iseogbekun and the father of the 1st and 3rd defendants/respondents carried out the instructions until his death when the 1st, 2nd and 3rd defendants started collecting rents from the tenants in the house without accounting to the plaintiffs.

The case of the 1st and 3rd defendants as exposed by their amended statement of defence is thus: one Ajegun Ologunagbeje, not a blood relation of Bashua Family but a son-in-law of one Esubi Basua having married Seliyat his daughter, had two children -Ayawo Ajegun and Sule Ajegun. They denied the existence of a person called Ajegun Bashua as a member of Bashua Family. The subject matter of this appeal originally belonged to Onisemo Family. In 1836, Ayawo Ajegun and her husband one Bakare Akeresewu requested for and got a parcel of land at Idumota from Onisemo Family through one Alii the cousin of Ayawo; that land is 24 Onisemo Street, Lagos, the subject-matter of this case. AyawoAjegun’s grand mother and Alii’s mother were from the Onisemo Family. In the cause of visiting Ayawo Ajegun (and her husband Bakare Akeresewu) his grand daughter and son-in-law respectively, at Idumota Esubi Bashua noticed a vacant piece of land near by and applied to the Onisemo Family for its grant. The request was granted and Esubi Bashua got the land registered in the name of Obashua under Crown Grant and her husband came into possession of the land including the land in dispute. Both Ayawo Ajegun and her husband built a mud house on the two pieces of land – the piece of land they got directly from Onisemo Family and the one given to Esubi Bashua.

They lived in the said mud house until they died. Both of them were survived by a son Abdulai who also lived and died in the house.

Abdulai’s full names are Abdulai Bakare Osho. The name Iseogbekun was second son of Abdulai Bakare Osho otherwise called Muse Bakare Osho alias Iseogbekun. In reply to the counter-claim of the 4th to 6th defendants/counter-claimants, they deny categorically that the property belonged to the Bashua Chieftaincy Family and consequently, it could not be a subject-matter off or feiture at the instance of that family have been exercising acts of ownership and possession without any hindrance, on the land since 1836.

The case of the 4th to 6th defendants, through their pleadings, is that the land in dispute originally belonged to one Odu who later became the first Chief Bashua Odu who belonged to Abagbon Class of Chiefs of Lagos. All the parcels of land including the land in dispute were covered by Crown Grants obtained for the Bashua Family. They again aver that under native customary law of Lagos, a Chieftaincy Family consists of the blood descendants, the Arotas (liberated slaves), domestics and Alabagbes. As far as they are concerned, one Esubi, who the plaintiffs refer to as Esubi Bashua was the head of the Arotas charged with the responsibilities of taking charge of all the properties of his overlord – the Bashua Family. It was on the performance of his duties that Esubi Bashua allocated No 24 Onisemo Street, Lagos to his daughter (Ayawo) and her husband to live upon as family house of Bashua Chieftaincy Family. Ownership in the property never passed to them. Esubi Bashua, they contend, was an Arota of Bashua Chieftaincy Family. The above is the resume of the different cases of the parties as shown by their respective pleadings.

I have had a careful study of all the issues raised for determination in this appeal. It seems to me that they are all interwoven and they can all be conveniently taken together in the consideration of this appeal. The crucial issue here is whether the plaintiffs/appellants or the 4th, 5th and 6th defendants/counterclaimants/respondents were able through their evidence trace their roots of title to the different original owners they have pleaded, if not, whether anyone of them (the plaintiffs and the 4th, 5th and 6th defendants/counter-claimants) have pleaded sufficient acts of possession and led evidence in support of same such as to entitle them to judgment. I shall therefore take all the issues together. Evidence was led by both the plaintiffs/appellants and the defendants/respondent in proof of the averments in their respective pleadings. Testifying, the 1st plaintiff/appellant said the original owner of the land in dispute was one Ajegun Bashua, the father of Sule Baba Muse and Sinotu Abiodun.

While Sule died childless, Sinotu Abiodun had a child called Alhaja Suwebatu Adufe, his mother and that of the 2nd plaintiff/appellant, his sister. There is no evidence as to how Ajegun Bashua came to own the land. But he gave evidence of acts of possession exercised on the land starting with his mother Alhaja Suwebatu Adufe who died on 20th of January, 198], he said and I quote him:-

“My mother before she died engaged a licensed surveyor to survey the land in dispute In 1950. The licensed surveyor prepared a plan of the site in issue. My mother had built a corrugated iron sheet or structure on the land … In the corrugated iron sheet built by my mother there are 4 rooms and she collected the rent up to the date she died on 20/2/81.”

It was also part of the evidence that the 1st and 3rd defendants are descendants of one Bakare Iseogbekun a slave who was put into possession of one of the rooms by the plaintiff’s family. Upon the death of Bakare Iseogbekun, his two children, the 1st and 3rd defendants, were permitted to continue to occupy the one room apartment their late father was occupying with instructions, however, to collect rents from tenants occupying the remaining two rooms on their behalf and utilise same to settle water rates in the premises. Their instructions were carried out till 1981 when their mother died and 1st, 2nd and 3rd defendants thereafter were collecting the rents without accounting to them and without carrying out their instructions as regards settlement of water rates. When cross-examined, he said Ajegun Bashua is known as Bashua Chieftaincy Family and that the 1st, 2nd and 3rd defendants are not members of that family, and therefore not the owners of the land in dispute. Suffice it to say that the 1st plaintiff was not cross-examined on the issue as to whether their mother had built a structure on the land since 1950. The second witness called by the plaintiffs before they closed their case was one Williams, a licensed surveyor, who came purposely to tender the survey plan. His evidence is primarily a formal one.

The 1st defendant/respondent – Alhaji Ganiyu Bakare Iseogbekun testifying on behalf of himself and the 3rd defendant/responded, his sister said and I quote him:

“The owners (sic) of the property in issue belongs to my grand-father. Esubi Bashua gave birth to Seliat.

Seliat gave birth to Ayawo Ajegbo and Sule Ajegbo … Ago Esubi got the land from Onisemo family and gave to his daughter (Ayawo Ajegbo) the wife of Akereselu … Ayawo built a mud house on the land in 1836 and she was living in the land with her husband had only one child by name Abdulai Bakare Osho. When Ayawo and her husband died, Osho was alone living in the house. Osho had 2 issues. They are (1) Raji and (2) Muse…

Abdullalu Bakare Osho and his two children took over possession of No. 24, Onisemo Street, and built a house on it… It is not true that my grandfather, father are tenants living rent-free on the land.”

Under cross-examination he said:-

“The iron sheet building was built by Gabriel Kehinde. Kehinde was a tenant of the plaintiff’s mother. .. I agree Gabriel was on the land for 10 years and he built the iron sheets … I stopped the mother of the plaintiff from collecting the rent on the premises since 1979 … There are 3 rooms on the iron sheets building.”

The 1st defence witness for the 1st and 3rd defendants testifying said:

“No. 24 Onisemo Street, Lagos belonged originally to Ayawo became the original owner of the said property when she got married to Bakare Akeresewu. The land was given to Ayawo by Chief Onisemo through Alii, a cousin of Ayawo.”

When cross-examined he said:

“I agree that Esubi begat Seliat. I agree that Seliat was the mother of Ayawo.”

The 4th to 6th defendants also testified and the 1st witness called by them on Nurudeen A1abi Kekere-Ekun said:

“I am the head of Bashua Chieftaincy family. The plaintiffs are members of Bashua Chieftaincy Family through their parents who are Arota. Arota means slaves of Bashua Chieftaincy Family. Also the 1st and 3rd defendants are descendants of Arota (slaves) of Bashua Chieftaincy Family … The property which is situate at No. 24 Onisemo Street, belongs to Bashua chieftaincy family … It was Esubi who allotted the property in issue for the plaintiff and defendant. .. The land in dispute is part of the landed property given to Bashua chieftaincy Family Aromire Chieftaincy Family are the original owners of the land in Lagos Island.”

Cross-examined he said:

“I am not the head of the family now … It is vacant land that was given to the Arota and the Arota built on the land (as in this case).”

The above are the relevant pieces of evidence given by all the sides at the trial of the case. In dismissing the claim and the counterclaim the learned trial Judge said:-

”The plaintiffs’ claim is that the land in dispute i.e. No. 24, Onisemo Street, Lagos belonged originally to

Ajegun Bashua, who was the great great grand-father of the plaintiffs. There is no evidence in the case how Ajegun Bashua became seised of the land in dispute …In this wise, the plaintiffs have failed to prove their claim against the defendants satisfactorily … The plaintiffs have woefully failed to prove their title on any traditional evidence. For the reasoning given here I am of the opinion that plaintiff has not established their claim against the defendants. Therefore the whole action in its entirety fails. The whole claim filed against the defendant is dismissed, accordingly. There is a lot of confusion in this case in relation to the question as to who is the original owners i.e. (1) Ajegun Bashua, (2) Onisemo Chieftaincy family and (3) Aromire Chieftaincy family … from the evidence which was given by the head of family of Bashua chieftaincy family he does not appear that he is familiar with the property in issue … It is hard therefore for me in this action to accept the fact that the land was allotted to plaintiffs and defendants who were claimed to be Arota to Bashua Family. There is no credible evidence before me that the plaintiffs and defendants Nos. 1,2 and 3 are slaves (Arota) to Bashua Chieftaincy family. There is no evidence commencement of the allotment. .. So the defendants 4, 5 and 6 have failed to prove allotment under Yoruba Native Law and Custom … The defendants Nos. 4, 5 and 6 failed to prove their counterclaim.

Therefore they are not entitled to a forfeiture against the plaintiffs and defendants Nos. 1, 2 and 3 over the land which is situate at No. 24, Onisemo Street, Lagos. For the reason and reasoning given in the judgment the counter-claim filed against the plaintiffs and defendants Nos. 1,2 and 3 fails in its entirety and is accordingly dismissed also in its entirety.”

Relating the above findings to the evidence on record. I agree with the learned trial Judge that the plaintiffs/appellants and the 4th, 5th and 6″‘ defendants/respondents/cross-appellants have failed to prove their title to the land in dispute. But there is copious evidence of acts of possession exercised by the plaintiffs/appellants on the land.

There is the unchallenged evidence that the 1st plaintiff’s mother had built a house on the land in dispute since 1950. It is now a well settled principle of law that a party may prove title to a piece of land in any of the following five ways:-

(1) by traditional evidence

(2) by documents of title

(3) by various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.

(4) by acts of enjoyment and possession of the land

(5) by proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, be the owner, of the disputed land.

See (1) Idundun & Ors. v. Okunagba & Ors. (1976) 9-10 SC 227 and (2) Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511. In the instant case, both the plaintiffs/ appellants and the 4th, 5th and 6th defendants/counter-claimants/respondents have failed to prove their title by traditional evidence. Even, attempt to prove their case through documents of title failed. As I have said, the evidence on record reveals that the plaintiffs/appellants have remained in undisturbed possession of the said property in dispute from 1950 to 1981. The evidence of 1st defendant/respondent – Alhaji Ganiyu Bakare Iseogbekun confirms the fact that the plaintiffs exercised acts of undisturbed possession on the property in dispute; they (plaintiffs) put tenant into possession of a part of the property. The first witness (N.A. Kekere-Ekun) called by the 4th to 6th defendants con finned that the plaintiffs/appellants were in possession of the said property.

Kekere-Ekun was categorical on the issue of possession of the property by the plaintiffs when he said that it was one Esubi who allotted the property in dispute to the plaintiff and the 1st and 3rd defendants. Evidence of this witness is a confirmation of the right of the plaintiffs to have exclusive possession of the said property. I am not oblivious of what I have earlier said supra that the plaintiffs/ appellants as well as the 4th -6th defendants/cross-appellants have failed to establish their claims for declaration of title. The law remains sacrosanct that the mere fact of failure of a claim for declaration of title will not have any effect on any right of possession;

see (1) Okiji & Ano. v.Adejobi & Ors. (1960) SCNLR 133 (1960) 5 SC 44 and (2) Ayinla v. Sijuwola (1984) 1 SCNLR 410 (1984) 5 SC 44. After all, possession of parcel of land, in legal parlance, means no more than the occupation or physical control of the land either personally or through an agent or servant see Ekpan & Or. v. Uyo & Ors (1986) 3 NWLR (Pt.26) 63. A period of over 30 years of exercise of right of possession over a parcel of land is undoubtedly a long period of acts of possession and enjoyment of land. Exercise of that right by force of law gives the plaintiffs/appellants the legal authority to retain an undisturbed possession of the property against all wrong doers but not against the established lawful owners or those claiming under lawful owners; see Shell B.P. Ltd v. Abedi & Ors. (1974) 1 All NLR (Pt.1) 1.

The exercise of such long acts of possession is a weapon more of defence than of offence, for as I have said a plea of such long acts of possession of land cannot stand where another proves a better title; see (1) Da Costa v. Ikomi (1968) 1All NLR 394. If a party, as in the instant case, establishes that he has been in long possession of a parcel of land, the burden of proof of ownership is on the person who affirms that person who is in possession is not the owner see (1) Section 146 of the Evidence Act, (2) Onyekaonwu & Ors. v. Ekwubiri & Ors. (1966) 1 All NLR 32 and (3) Lawal v. Ijale (1967) NMLR 155. The 4th, 5th and 6th defendants/respondents/cross appellants have not been found to have established their title to the land. Having failed to establish their title to the land, the said cross appellants cannot be heard to contend that the right to the land in dispute rests in another person to defeat the possessory right of the plaintiffs-that will be pleading a third person’s right; see Anukanti vs. Ekwonyeaso (1978) 1 SC 37. Having regard to what I have been saying, the trial Judge should have found for the plaintiffs in terms of their second relief. It is for this reason that I answer issue No. (A) on the appellants brief by saying that the learned trial Judge misconceived the plaintiffs/appellants’ claims. Afortiori issue No. (B) on the same brief is answered in the affirmative judgment ought to have been entered in their favour in respect of issue No. B. My answer to issue No. C is also in the affirmative. Following from the above issue No. A in the brief of argument of the 1st and 3rd defendants/respondents is answered in the negative. Issue No. B thereon is answered in the affirmative while my answer to issue No. C is in the negative. Issue No. 1 in the brief of argument of the 4th, 5th and 6th defendants/respondents is answered in the affirmative.

On the second issue, I only have to repeat that it is trite that any party relying on traditional evidence must trace his title to that of the original owner of the land by adducing credible evidence. The 1st, 2nd 3rd defendants admitted that they were collecting rents from the tenants at No.24 Onisemo Street, Lagos since 1979. The 2nd defendant although served with all the processes, did not file any defence nor did he testify in this case. She was said to have died during the trial. Therefore my answer to issue No.3 is that on the face of the evidence before him, the learned trial Judge should have dismissed the first leg of the plaintiffs’ reliefs and entered judgment in their favour for reliefs 2 and 3. The counter-claim ought to be dismissed in its entirety as it was done for it was not deserving of an order of non-suit.

In the final analysis, this appeal succeeds in part. To the extent to which it complains against the order of the court below dismissing the first leg of the claim which is for declaration of title, this appeal is dismissed. However, this appeal is allowed in respect of the order made by the court below concerning reliefs 2 and 3. The judgment of the court below affecting these two reliefs is hereby set aside. In its place is the judgment entered in favour of the plaintiffs/appellants but against the defendants/respondents on the following term:

(1) possession of No. 24 Onisemo Street, Lagos now in the possession of the defendants shall immediately revert to the plaintiffs/appellants.

(2) the 1st and 3rd defendants/respondents shall render account of all rents and profits collected by them from the tenants on No. 24, Onisemo Street, Lagos from 1979 up to date and same shall be paid over to the plaintiffs inclusive of profits thereon.

The appellants shall be entitled to the cost of this appeal which I assess in their favour at N5,000.00 against each set of 1st and 3rd respondents and 4th, 5th and 6th respondents.

Other Citations: (2002)LCN/1124(CA)