Chief Mrs F. Akintola & Anor V. Mrs C .F. A. D. Solano (1986)

COKER, J.S.C

This appeal is by Chief (Mrs.) F. Akintola, the only surviving of three defendants at a stage of the proceedings before the High Court of Oyo State. Before the hearing, the 1st and original defendant, Samuel Odutola Latona, died and the claims against him were withdrawn and his name struck out of the suit.

After the judgment of the High Court and while the appeal of the plaintiff was pending before the (Federal) Court of appeal, the 3rd defendant, E.O. Dickson died and two of his issues, namely Mrs. A. Adetola Winjobi and John Dickson, were substituted in his place by an order of the court dated the 26th day of May, 1981. Another observation is that although the Notice of Appeal dated 7th January, 1982 described both Chief (Mrs.) F. Akintola and the deceased E.O. Dickson, as the appellants, the two affidavits of Chief (Mrs.) Akintola dated 7th January, 1982 and 7th February, 1982 indicate that she alone instructed Chief Fajemisin, learned Counsel, to file the appeal and to seek leave to appeal against the decision of the Court below. And it was only Chief (Mrs.) Akintola who filed a Bond for security for Costs on 12th March; 1982.

The position then is that the only appellant before this Court is Chief (Mrs.) F. Akintola. The appeal therefore is not by Chief Mrs. F. Akintola and (the deceased) E.O. Dickson as the papers before the Court (including the appellants’ brief) seem to indicate.

This appeal concerns a claim for declaration of title to a piece of land along Ikirun Road, Oshogbo, damages for trespass and order of injunction in respect of the land, which is described in a plan No. SEW/W/2377B prepared by M.A. Seweje, Licensed Surveyor, and marked exhibit A. The area verged blue was occupied by Chief (Mrs.) Akintola, while the area occupied by Mr. Dickson was verged “Green” thereon.

The plaintiff claimed ownership of the land by virtue of grant to D.G. Dedeke by Samuel Oyedokun, Latona II, the Ataoja of Oshogbo, on the 14th March, 1935. The grant was in exchange for another piece of land at Oshogbo which his later father, Latona I, Ataoja of Oshogbo, granted him in 1902, but which was subsequently occupied by a newly found society known as “The Oshogbo Improvement Society” of which the said Latona I, the Ataoja, was president.

Evidence was led that D.G. Dedeke took possession of the land after it had been demarcated by the two messengers of the Ataoja, Samuel Fatunbi and Mustapha Alao in the presence of witnesses. A document or memorandum made on the date of grant, 14/3/35, and in the handwriting and under the signature of the said D.G. Dedeke which was pleaded by plaintiff was tendered and received in evidence without objection and marked exhibit J. The document contained a sketch plan of the land and a short statement of the grant with the names of witnesses to the grant. The land was later demarcated by D.G. Dedeke into four portions, each with a statement under his signature and dated June 6th, 1935 purporting to devise each to his heirs named thereon. The four devises were mentioned in his last will and Testament made subsequently on the 3rd February, 1938. It was also tendered and admitted in evidence.

The sole surviving plaintiff, Mrs. Solano, a grand daughter of D.G. Dedeke, and five other witnesses testified for the plaintiff, while the 2nd defendant (i.e. the appellant) only gave evidence on her own behalf and tendered a deed of conveyance dated 22nd May, 1972. The deed which was submitted for registration on the 20th July, 1972, was executed by Samuel Oduola Latona, who was originally the only defendant in the suit; he was in the said deed of conveyance described as “seized of the hereditaments beneficially under native law and custom free from encumbrances. ” The habendum stated that “the ‘vendor was Beneficial owner, hereby grants and conveys unto the Purchaser. ” The deed did not describe him as either the head of the Latona family or as representative of members of the Latona Family. In paragraphs 6 and 7 of the Statement of Defence of 2nd defendant/appellant-Chief (Mrs.) Akintola, pleaded as follows:-

(6) “The 2nd Defendant asserts that she did not commit any trespass on the land or any part of the land in dispute and she, (2nd defendant) bought the first part of the land in dispute edged blue in the survey plan attached to the Plaintiffs statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st Defendant to the 2nd Defendant vide a Deed of Conveyance which will be tendered at the hearing.”

(7) “The 2nd defendant will also contend at the hearing that when the said part of the piece of land in dispute was sold and conveyed to her by the 1st defendant, there was no sign board found or seen on the said land and that only a thick bush was seen on the land. The 3rd defendant, E.O. Dickson, pleaded the same title of the 1st Defendant, Samuel Oduola Latona. In paragraphs 6 and 7 of his statement of defence, he averred:

“(6) The 3rd defendant asserts that he did not commit any trespass on the land or any part of the land in dispute as he, (3rd defendant) bought the part of the land in dispute marked “E” and edged green in the survey plan attached to the plaintiffs’ statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st defendant to the 3rd defendant vide a Deed of Conveyance which will be tendered at the hearing.

(7) The 3rd defendant will also contend at the hearing that when the said part of the land in dispute was sold and conveyed to him by the 1st defendant, there was no sign board or any inscription of any of the plaintiffs found or seen on the said land and that only a thick bush was seen on the land.”

The appellant in her evidence testified that she bought the land from the Latona Family through Prince Oduola Latona. This is contrary to her pleading, and therefore her testimony in this regard went to no issue. Similarly, her evidence that Oduola Latona was the head of the family was not pleaded. If as she admitted, the land was Latona family land, her title to the land was therefore void and was not better than that of D.G. Dedeke. See Solomon v. Mogaji (1982) 11 SC.1.

In his judgment, the learned trial judge stated:

“(a) The 5th plaintiff (witness) Bishop S.C. Phillip said that he knew Canon Dedeke very well and he requested him to look after his land in Oshogbo which was passed to him by his father. The witness said that he went to see the land with one Ojo Omitoyin who was farming on the land (and) in accordance with Canon Dedeke’s request, he erected pillars at the four corners of the land. When he heard that some people were making trouble on the land, he put a signboard on it. The witness stated that he knew nothing more about the land other than that Ojo Omitoyin was put in care of the land and he was farming on it. The land was also fenced with wire. The evidence of the witness showed that he was always on the land.