Alhaji W. Elias v. Alhaji B. A. Suleimon & Ors (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In suit No. HK/6/59 filed in the Lagos High Court, the plaintiff, now appellant, had instituted an action against the defendants, now respondents, in which he had claimed against them as follows:

“1. Declaration of title in fee simple in respect of the land situate at 13 milestone on the Lagos-Ikorodu Road, Ikeja District, covered by Deed of Conveyance dated the 13th day of January 1958 and registered as No. 1 at page 1 in Volume 234 of the Register of Deeds kept in the Lands Registry at Ibadan and the plan attached thereto.

2.500(pounds) being special and general damages for trespass committed by the defendants on the said land.

3. Injunction restraining the defendants, their servants and/or agents from further trespass on the said land.”

Paragraphs 2, 3, 4, 5 and 7 of the statement of claim filed by the plaintiff in support of his claim read

“2. The plaintiff avers that the said land formed portion of a large area of land belonging to and vested in the Onikoro and Onikosi Chieftaincy families and as original settlers from time immemorial absolutely under Yoruba native Law and Custom.

3. The plaintiff avers that the said Onikoro and Onikosi Chieftaincy families were in possession of the said land exercising continuously all rights of ownership and all acts of possession thereon without any let, disturbance or hindrance from or by anyone until the same was sold to him in or about the year 1957.
4. The plaintiff avers that on the 13th day of January, 1958, the said Onikoro and Onikosi Chieftaincy families executed in his favour the deed of conveyance referred to in the first paragraph of the writ of summons.
5. The plaintiff avers that he and his predecessors in title have been in undisturbed and continuous possession and ownership of the said land until the acts of trespass by the defendants started.
6. The plaintiff avers that in the year 1958 the defendants wrongfully broke and entered into the said land, pulled down and destroyed the plaintiff’s signboard thereon and cut down the trees and vegetables on the land.”

Each of the defendants denied the above averments in his respective statement of defence.

The first defendant averred in his own statement of defence that he was only concerned with some small portions of the land in dispute and that the plaintiff had never been in possession of these portions which he (the first defendant) occupied in his own right as owner by purchase. He then explained his own position further as follows:

“4. The 1st defendant avers that he claims five different portions of land four of which are within the area covered in the plan attached to the statement of claim.

5. Three of the said land originally belonged to the Oshorun family and the other two belonged to the Ikoro family, both holding same as owners under Native Customary Law.
6. The three portions said to belong to the Oshorun family was sold variously by Wahabi Kalejaiye Onikoro present Chief Onikoro and others, by Badaru Aina, Chief Oshorun and others, each party selling on behalf of and with the consent of the respective families. The parcels of land are situate at Idena.
7. In respect of the land originally owned by the lroko family, which land is situate at Owode, Kalejaiye Chief Onikoro sold the land, as head of the Onikoro family to one E.B. Beyioku Alashe on 30th December,1929, whose children sold the land to the 1st defendant.
8. The predecessors in title of the 1st defendant were in possession of the land referred to in paragraphs 6 and 7 above, and the 1st defendant has, since the sales to him, been in possession and tenants of the 1st defendant’s predecessors in title have since attorned tenancy to 1st defendant.”

The 2nd defendant averred in his own statement of defence that he was only concerned with another small portion of the land claimed by the plaintiff and that the plaintiff had never been in possession of the small portion which he (the 2nd defendant) occupied in his own right as owner. He also averred that the portion, which was then virgin forest, was originally let out to him in 1917, under native law and custom, by Chief Kalejaiye Onikoro as the head and accredited representative of the Ikoro Family’ ‘who originally owned the land from time immemorial,” and that he has since been in possession of the said portion. Finally, the 2nd defendant averred that in 1956, the accredited representative of the Ikoro family sold the said portion to him and that he has never parted with his possesion of it since.

The 3rd defendant averred in his own statement of defence that he is claiming yet another small portion of the land claimed by the plaintiff and that this portion is by the Ogun River near Owode. He admitted that this portion was originally owned by Onikoro Chieftaincy family but that on 6th August, 1907, one Chief Onikoro named Songotola, as the accredited representative of the Onikoro family, and with the knowledge, consent, and approval of all the principal members of the family, sold the land to one Obasa Igbaro; that Obasa Igbaro, immediately after the sale, entered into possession of the land and exercised acts of ownership thereon; that on 24th March, 1912, the said Obasa Igbaro in turn sold the land to one Amusa Balogun the father of the 3rd defendant who also entered into possession.

Finally, the 3rd defendant averred that his own father (Amusa Balogun) remained on and cultivated the land until his death about 1954 when he (the 3rd defendant) and his brothers inherited the land and have since been in possession, exercising acts of ownership over it.

It is, we think, pertinent to point out that while the plaintiff obtained and tendered in evidence the deed of conveyance (Ex. J) referred to in detail in his writ of summons and which he obtained from his vendors, none of the defendants produced any deed of conveyance in support of the claim made by him in respect of the portion or portions of land of which he claimed to be in possession.

The conveyance (Ex. J) on which the plaintiff relies shows that-

“Chief Wahabi Kalejaiye, the Onikoro of Agboyi, Chief Yekinni Oganla, the Wajoba of Agboyi, Amusa Ayo Ogunsola, Yisa Kalejaiye, Latunji Oganla, and Ladunni Onikoro, all of Agboyi, for themselves and as the accredited agents and representatives of the Onikoro Chieftaincy family of Agboyi, Chief Yesufu Oke the Onikosi of Ikosi, Revd. Gbamgbola Taiwo, Joseph Taiwo, Rufai Oloyede, Oseni Ajulo and Buraimoh Dejobi all of Onikosi village for themselves and as the accredited agents and representatives of the Onikosi Chieftaincy family” as vendors conveyed the land in dispute, which they said is communal land which belongs to and is vested in the Onikoro and Onikosi families “absolutely under Yoruba native law and custom,” to the plaintiff

“absolutely and for ever freed and discharged from claims and demands from or by the said Onikoro and Onikosi Chieftaincy families.”

On the other hand, the first defendant relied on the purchase receipts (Exhibits X, Y, Z, U and T), the second defendant on two documents-a tenancy agreement (Ex. 25) and a purchase receipt (Ex. 24) and the third defendant on the purchase receipts (Exs. 21 and 22). No plan of the area or areas sold was attached to any of these documents. In support of his claim, the plaintiff testified that he bought the land from the Onikoro family and obtained the Conveyance admitted in evidence as Ex. J. He then described how the defendants trespassed on the land as follows:

“When my signboard was up and I planted the coconuts, then a fellow named Ben, Ishola Balogun and Yesufu Balogun rooted out the plants. Ben is in the employ of the 1st defendant. Yesufu Balogun and Ishola Balogun are the 2nd and 3rd defendants respectively. I thereby suffered damages to the tune of 100(pounds). I warned them and then sued them. Ben said land belonged to 1st defendant and 2nd and 3rd defendants claimed part of the land. I do not know how first defendant got land. The Onikoro said they have not sold my parcel to anybody. Yesufu (2nd defendant) said Onikoro had no right to sell as land had been leased to them. The Onikoro say they have not sold to 2nd or 3rd defendant but only leased to them. Ishola said the same thing.”

One Daniel Adeniyi Makinde, (5th P/W.), a Customary Court member, who has been in the village since 1921, and who farms on a portion of the land in dispute and who knows all the defendants gave evidence in support of the plaintiffs claim. With respect to the claim of the 1st defendant, he testified as follows:

“I know 1st defendant. I know he is on family land sold to Alase. 1st defendant’s land is not part of plaintiffs land, but it is by it.”

Yekini Oguntola, Chief Olugbade (6th P/W.) who is a member of the Oshorun family stated in the course of his own evidence that Chief Onikoro is their head Chief, that he (Chief Onikoro) is superior to both Chief Onikosi and Chief Oshorun, and that neither the Onikosi nor the Oshorun can sell land to the plaintiff without the consent of the Onikoro.

Wahabi Kalejaiye, the present Chief Onikoro of Offin Agboyi (1st P/W.) in his testimony confirmed the sale of the land in dispute to the plaintiff by both the Onikoro and the Onikosi families, and that he was one of the signatories to the conveyance (Ex. J). He denied that they sold any part of the land in dispute to any of the defendants. While admitting that a former Chief Onikoro sold a piece of land to one Beyioku Alashe who in turn sold this land to the 1st defendant, he further explained that this land was not part of the land they sold to the plaintiff but that it had common boundaries with it. He also stated that before he became Chief Onikoro he also sold another piece of land to the 1st defendant as a private individual but that when his family objected to the sale, he offered to refund the 1st defendant’s money to him. He further denied that the family sold any land to the 2nd or the 3rd defendant. He testified further about the 2nd defendant as follows:

“I am not aware that Egbe Agbe sued the 2nd defendant at any time. I cannot say whether 2nd defendant paid to Egbe Agbe. He is still farming on the land as he has been doing from time of Kalejaiye. He farms on a land near Ketu not on land in dispute.”

When he was re-examined, Chief Onikoro stated that the 2nd defendant is still on the land in dispute as a tenant but he did not say who was his landlord. He finally testified as to how the 3rd defendant got on the land in dispute as follows:

“I have known Ishola Balogun for a long time. He was born and lived at Ketu. He is a farmer as was his father Amusa Balogun. Ketu is a village. The house they live in belong to them. I do not know the number of houses at Ketu. No rent is paid to Onikoro family. Amusa Balogun was a farmer. At one time, Oyero, father of Amusa Balogun was driven from the land but when they apologised we asked them to join and be paying through the Egbe Agbe on land in dispute.

Amusa Balogun had been on the land all the time paying rent. If Amusa Balogun bought he should have documentary evidence.”

Here again the witness did not say to whom Amusa was paying his rent.

In his defence, the first defendant said he was not claiming all the land edged pink in the survey plan (Ex. ‘R’) which the plaintiff claimed by virtue of the deed of conveyance (Ex. J). He said he was only claiming three parcels (described by him as parcels A, B, and C in his own plan Ex. 12). He said that Oko Agbon and Oko Idukun were on parcel C which was sold to him by Beyioku Alase who had bought it from the Onikoro family. Alashe gave him the purchase receipts (Exs. T and U). He bought parcels A and B from the Onikoro family and obtained the purchase receipt (Ex. X) in respect of parcel A while he obtained the purchase receipt (Ex. Y) in respect of parcel B. When the sale to him was questioned by Chief Oshorun he bought the two parcels again from the Oshorun family in 1956 and obtained the agreement of sale produced in evidence as Ex. Z. Under cross examination, the 1st defendant admitted that there was no survey plan of parcel “c” until the present proceedings started. He also admitted that it was the children of the Alashe family who showed him the boundaries. He further admitted that he bought parcels A and B from Wahabi Kalejaiye (6th P/W.) and his brothers because he was told that the land was their personal land. On further enquiries, he later bought the same parcels from the Oshorun but had to admit also that what the Oshorun later sold to him was larger than what he had formerly bought from the 6th P/W. finally, the 1st defendant admitted that at the time he bought parcels A and B, there was no plan. The surveyor Apatira (D.W. 7) who prepared the survey plan (Ex. 12) for the 1st defendant said that all the three parcels shown thereon are within the plaintiff’s land as shown in Exhibit R, but did not specify their exact locations.

In his own defence, the 2nd defendant (Yesufu Balogun) after producing the purchase receipt (Ex. 24) and the tenancy agreement by virtue of which he paid rent of 5/- per annum (Ex. 25) in support of his claim, testified under cross-examination as follows:

“Kalejaiye Onikoro gave me land and afterwards gave me a document in support. I was once a tenant on the land but it has been sold to me. I was a tenant for nearly about 40 years. For 70 years I have been on land both as tenant and owner. I paid 120(pounds) for land. I paid to the Onikoro family to Yisa Kalejaiye Onikoro senior brother of Chief Wahabi Kalejaiye and in the presence of the Onikosi, Yesufu Oke, Mutairu Onikoro Ogunsola and others. Kalejaiye who gave the land to me as tenant had died when land was sold to me and no one had been appointed.”

The 3rd defendant (Ishola Balogun) also testified in support of his own claim to a portion of the land in dispute and produced purchase receipt (Exs. 21 and 22) to back up his claim. He called two witnesses, Rasaki Atanda (lith D/W) and Momoh Akinwande (12th D/W), who testified that they farmed on the 3rd defendant’s land and paid rent to him. The third defendant said that his father, Amusa Balogun bought the land from the Onikoro family and that he was born there and had farmed there all his life. The portion claimed by him is shown on the plan (Ex. 9) filed by the 2nd defendant.

After reviewing the evidence adduced before him and the various judgments tendered by the plaintiff, the learned trial judge found as follows:

“In suit 117/1936 (Ex. ‘C’) the defendants accepted the Onikoro and Onikosi as owning all the lands, farmlands and fishing water courses at Odo-Ogun district, Agboyi. Also in suit No. 129/1942 (Ex. ‘1’) Lloyd, J. also referred to the dictum in suit No. 171/1929. Although some of those cases do not include the Oshorun it clearly shows the Onikoro as the overlord of the area. Moreover, the actual action (suit 171/1929) in which the Onikoro was regarded as the overlord included the Oshorun, or a member of that branch, as plaintiff with the Onikoro and the Onikosi. This statement has never been challenged. I am therefore constrained to accept the version of the plaintiff in this action that the land in dispute is communal land jointly owned by the three branches but that the Onikoro, as overlord, has to be consulted and has to give his consent in dealings with strangers. It may be correct that at one time, part of the land was allotted to the branches for farming purposes, and the remainder given to strangers as customary tenants as in the case of the 2nd defendant. If this was the case the allotment to the branches was not an outright portion, for the land still remained in the family and could only be alienated in accordance with custom, i.e. with the knowledge and consent of the Onikoro as the paramount chief.

The Onikoro Chieftaincy family is therefore in a position to convey the fee simple of their land provided such conveyance is appropriately worded.”

The learned trial judge then dealt with the claims of the three defendants severally and observed in respect of that of the 1st defendant as follows:

“Portion A in Exhibit ’12’ was alleged to have been sold to the first defendant in the first instance by three of the children of late Chief Kalejaiye Onikoro (Ex. ‘X’). These children dealt with the portion as if it was the personal property of their father, which it was not, and so 1st defendant got nothing. Portion B in Exhibit ’12’ was first sold to the 1st defendant by Wahabi Kalejaiye (P.W.1) when he was not yet made the Onikoro, as his personal property (Exhibit Y) whereas the portion was part of family land. The 1st defendant got nothing by this transaction. Both portions A and B in Exhibit 12 were again sold to 1st defendant by the Oshoruns (Ex. Z). As I have mentioned earlier all alienation of the property of the Onikoro, Onikosi and Oshorun family to strangers have to have the approval of paramount chief in the person of Chief Onikoro. The 1st defendant got nothing by Ex. ‘Z’ On the whole the 1st defendant got nothing by virtue of Exhibits X or Y or Z in respect of Portions A and B in Exhibit Z.

In regard to portion C in Exhibit 12, the 1st defendant is on better grounds. Mr. Beyioku Alashe, his predecessor-in-title got ‘two different plots’ sold to him by the paramount Chief (then Kalejaiye Onikoro) vide Exhibit U. These two different plots are described as Oko Idunkun and Oko Agbon in Exhibit ‘T’ issued to the 1st defendant by the surviving children of Beyioku Alase. . . . . . .”

The learned trial judge also considered the 2nd defendant’s claim as follows:

“The second defendant got Portion B as drawn on Exhibit 25 from the paramount chief as a customary tenant in 1917. This in itself is valid and gives the 2nd defendant the usual customary tenure subject to good behaviour and the reversionary rights of the family. But then some members of the Onikoro Branch in 1956 issued Exhibit 24 to 2nd defendant purporting to sell the portion as the personal property of their father. As I have said in the case of portion A in Exhibit 12 in respect of the 1st defendant, this Exhibit 24 conveys nothing as the vendors could not inherit what was not the property of their father. The second defendant is however still left in his position as customary tenant.”

With respect to the 3rd defendant the learned trial judge observed as follows:- .

“Exhibit ’22’ is a certificate of purchase issued to the predecessor-intitle of 3rd defendant in 1907 by the then paramount chief (Shangotola Onikoro) and Exhibit ’21’ is one from the predecessor-in-title to the father of 3rd defendant in 1912. Both these documents in my view only convey under customary tenure………………………………….

Having made the above observations in respect of the defence put up by each defendant, the learned trial judge observed finally as follows:

“As I had not a complete plan before me, and as the surveyors who testified before me were only able to say that the several portions, alleged to belong to the defendants, fall within and are only a part of the land of plaintiff, I was not able to see the whole picture at a glance, and be in a position to say if at all there had been trespass by the defendants, and if so or if not, to what extent, the declaration sought for is to be limited if found necessary. None of the plans before Exhibits ‘J’, ’12’, and ‘9’ -is of any help in this instance as each dealt with the portion claimed by each party without any indication as to the correct positions of the other portions claimed by the others.”

Pursuance to the above observation, he then found finally as follows:

“I am of the opinion that the plaintiff should have supplied a composite plan as required for he is the one asking for a declaration, and he has to prove his cause on its merits and not on the weakness, if any, of the case of the defendants. I think this action should be non-suited in the circumstances with liberty for the plaintiff to file another action if so advised. ”

It is against this decision that the plaintiff has now appealed to this court. The main complaint of the learned counsel for the plaintiff/appellant is that the learned trial judge, having found that the land in dispute is communal land jointly owned by the three branches of the Onikoro Chieftaincy family who are therefore in a position to convey the land in fee simple provided the conveyance is appropriately worded, he should have given judgment for the plaintiff in view of the recital in his conveyance (Ex. J) and the uncontroverted evidence of Wahabi Kalejaiye (1st P/W.) the present Chief Onikoro that the family sold and conveyed the land, edged pink in the plan (Ex. R), which is the same as that attached to the conveyance (Ex. J), to the plaintiff. Another complaint is that since it is common ground that the radical title in the land in dispute is in the Onikoro Chieftaincy family and that the plaintiff obtained his conveyance (Ex. J) from that family, judgment should have been given in favour of the plaintiff particularly as the learned trial judge has also found that he could not relate the several areas of land claimed by the defendants to that claimed by the plaintiff in his own plan (Ex. R).

We think both complaints are well founded. The point made on behalf of the plaintiff/appellant has been settled as far back as 1946 in the case of Thomas v. Preston Holder (1946) 12 W.A.C.A. 78, which is almost on all fours with the case in hand. In that case the court, at page 80 of the report, found as follows:

“Where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If his title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such a case the court, by applying the rules of equity rather than those of strict native law and custom, will decline to disturb his possession and will refuse a declaration of title in favour of the original owner. In the present case we are satisfied from the evidence that the appellant has established ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the certificate of purchase by Samuel in 1943 and the series of conveyance by which the appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the court would not, on equitable grounds, make a declaration or disturb the respondent’s possession. This in our view the respondent has failed to do.” Moreover, in Nigeria, a conveyance of family land using non-customary formalities passes a fee simple which means in the con of Nigeria, absolute title or absolute ownership or a fee simple. (See Alode v. Aborisode (1960) 5 F.S.C. 167 at p. 174). Other decisions along the same lines will be found in the decision of the Privy Council in Oshodi v. Balogun (1934) 4 W.A.C.A. 1 at pp. 6-7 and in Coker v. Animashawun (1960) L.L.R. 71 at pp. 73-74.

In the case in hand, the plaintiff/appellant having traced his title to the Onikoro family to the satisfaction of the court, the onus of proving the respective area of land sold to each of them and of which they claimed to be in possession, and of relating this area to the land claimed by the plaintiff/appellant, rested on each of the defendants/respondents. If they failed to satisfy the court, as they appeared to have done, as to the areas they are claiming, then their defence crumbled and judgment should have been given in favour of the plaintiff/appellant.

In our view, the learned trial judge was in error in holding that the 1st defendant/respondent was “on better grounds” with respect to his claim to the portion marked C in the plan (Ex. 12) because Beyioku Alase, his predecessor in title, bought the “two different plots” which comprised this portion from Chief Kalejaiye Onikoro as shown in the purchase receipt (Ex. ‘U’) and that the two portions were later described in Ex. T as Oko Idunkun and Oko Agbon. In the first place, the land sold to Beyioku Alase as shown in Ex. ‘U’ dated 30th December, 1929, was merely described as “two plots of land sold to him by me at Owode Village (Ikeja District.)” It is not clear from this description whether it is the land which is at Owode Village or whether it is the sale which took place at Owode Village. Secondly, the boundaries of the land was not given, and it is therefore impossible to know what was actually sold to Beyioku Alashe. Because of these, the document (Ex. ‘T’) made on 5th November, 1955, that is about 25 years later, where this portion was described, not by the vendors of Beyioku Alase but by Alase’ s children as-

“farmland situated at Owode Port facing Ogun river bridge on the left and on the right side of the Lagos-Ikorodu Motor Road to the second culvert concrete bridge extremely surrounded by Roro river, the farmland known and called Oko Agbon and Oko Idukun.”

is completely worthless, particularly as the 1st defendant/respondent himself admitted that he had no plan of the area until the present case started.

The learned trial judge, when dealing with the case of the second defendant/respondent, observed that the 2nd defendant/respondent obtained the portion marked B on the plan Ex. ‘9’ by virtue of the tenancy agreement (Ex. 25) from the paramount chief as a customary tenant and held that for that reason he was still left “in his position as customary tenant. ” In coming to this conclusion, the learned trial judge overlooked that part of the testimony of the 2nd defendant/respondent in which he said that he had been on the land for seventy years, forty years as tenant and thirty as owner, and that Chief Kalejaiye Onikoro who gave him the land as tenant had died before the land was sold to him and that no successor had been appointed as Chief Onikoro. The learned trial judge also failed to take cognisance of the fact that the area of which the 2nd defendant/respondent was tenant and of which he later claimed to be owner was never surveyed, and that he claimed the land throughout as owner by purchase and not as customary tenant. We are satisfied that, for all these reasons the learned trial judge was in error in holding, as he did, that the 2nd defendant/respondent was still left in his position as customary tenant, a status which, on his own admission, he discarded over thirty years before the present action.

It must also be recalled that, in considering the case of the 2nd and 3rd defendants/respondents, the learned trial judge observed as follows:

“The portion of the 2nd defendant and 3rd defendant are well described in Exhibit ’24’ and Exhibit ’21’ but the two defendants submitted the plans of their portions on one plan (Ex. ‘9’) without placing the two plans in their true positions relative to one another.”

In view of this and his later observations that he had not the necessary composite plan before him (which is clearly the duty of the defendants/ respondents to provide) it is quite clear that the 3rd defendant/respondent had also failed to prove conclusively that the land bought by him and in support of which he had produced the purchase receipts (Exs. 21 and 22), formed part of the land claimed by the plaintiff/appellant.

For all these reasons, we have concluded that the learned trial judge was clearly in error in non-suiting the plaintiff/appellant. As he had clearly proved his case, judgment should have been given in his favour. The appeal therefore succeeds and it is allowed. The judgment of Sagoe, Ag. J. in suit No. HK/6/59 delivered on 30th June, 1969 including the order as to costs is set aside.

We make the following orders:

(i) that the plaintiff/appellant be granted declaration of title to the piece of land at mile 13 on the Lagos-Ikorodu Road which is more particularly described as the area edged pink in plan No. AL74/1957 of 24th April, 1957 (Ex. R);

(ii) that he be awarded the sum of N200 as damages for trespass on the said land against the three defendants/respondents jointly and severally;

(iii) that the three defendants/respondents be restrained, and are hereby restrained, from committing further acts of trespass on the said land; and

(iv) that these shall be the judgment of the court.

In addition, the plaintiff/appellant is awarded costs in the court below assessed at N300 against all the defendants/respondents, and in this court at N200.

---

SC.205/1971