Disu Akiyemi Oshodi V. Kaliatu Imoru & Ors (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Family property—Setting aside of sale—Reversionary interest—Acquiescence as a bar to ejectment and acquiescence sufficient to pass title.

Held : Finding of acquiescence by plaintiff’s family was wrong and plaintiff entitled as against first defendant to have sale set aside. Brimah Baloguis & Others v. Saha Chief Oshodi followed. Case remitted to trial Court to hear third defendant’s defence.

The facts of this case are sufficiently set out in the judgment. J. C. Zizer (Miss Thomas with him) for Appellant.

A. Kayode for First Respondent.

Second Respondent in person.

C. Martins for third Respondent.

The following judgment was delivered :—

KINGDON, C.J., NIGERIA.

In this case the plaintiff sued as Chief and Head of the Oshodi family on behalf of himself and family and claimed in his writ issued in January 1934 an order ” to set aside the sale of real property situate at No. 5 Freeman Street, in the town of Lagos in the colony of Nigeria and/or in the alternative to set aside the order of the Supreme Court dated 11th day of October, 1938, authorising sale of the said property on the ground that the property is the plaintiff’s family property.”

The statement of claim is as folldws :—

I. The plaintiff says that he is Chief and Head of the Oshodi family.

2. That the property in dispute is part of the compound known as Ajia Ijesha Compound situate at Freeman Street, Epetedo, in the town of Lagos, in the colony of Nigeria, and was originally owned by the late Chief Oshodi Tappa on behalf of himself and family.
3. That neither my predecessors in title nor my family or I did at any time alienate the said property.
4. That by native law and custom my family and I have always been and are still owners of the property in dispute.
5. That many years ago the Oshodi family permitted their slaves (or domestic servants and his family) Ajia Ijesha alias Ajia Fagbo to occupy the land in dispute but still retained their reversionary right which hitherto has never been alienated by them nor have they at any time or in any way caused this right to be alienated.

That the present tenants of tie said premises namely : Rabiatu Imoru

Akiyemiand Saibu Imoru instituted in action in this Court without the consent

Oshodior knowledge of myself and f unify and contrary to our wish, for partition

v.or sale of the said property.

Kaliatu7. The plaintiff further says that he and his family were not parties to suit

‘morn & Ors.aforesaid.

-8: That this honourable Court didi order a sale of the said property, without

Kingdon,knowledge of myself and family, and was not informed ab to our rights

C.J.in the said property.

9. That the third defendant bought the property under the order of the said Court without the knowledge and consent of myself and family.
10. The plaintiff further says that the said first and second defendants have no title to convey to the third defendant, have no power of sale of the property, and cannot alienate the said land by native law and custom, nor could they otherwise sell the said property.
11. The plaintiff pleads caveat emptor against the defendants.

The plaintiff therefore claims as per Writ of Summons and the defence of the first and third defendants is as follows :—

First Defendant’s Statement of Defence.

1. The defendant admits paragraph I of the statement of claim.
2. The defendant denies paragraphs 2 and 3 of the statement of claim.
3. The defendant denies paragraph 4 of the statement of claim.
4. The defendant admits paragraph 6 of the statement of claim in so far as it relates to the institution of an action, but denies that she is tenant to anyone.
5. Paragraph 7 is admitted.

0. The defendant denies paragraph 10 of the statement of claim.

7. The defendant says that she inherited the property • from her late father, Imoru Bazazegi.
8. The said Imoru Bazazegi, who was a perfect stranger to the Oshodi family, was a purchaser for value without any notice under a deed of conveyance dated 6th June, 1902.
9. The defendant pleads estoppel by conduct, lathes and acquiescence.
10. The defendant pleads possession.
11. The defendant will contend at the trial that this action is not a bona fide one, but was brought about by the second defendant, who lost in the action for the partition or sale of the said property.

Third Defendant’s Statement of Defence.

1. The defendant says she is a purchaser for value without any notice of any defect in the title.
2. The defendant further says she bought the said property under an order of this honourable Court.

The second defendant ranges himself on the side of plaintiff and makes no defence to the action either in the Court below or in this Court.

The main issue and really the only issue decided in the Court below was, as the learned trial Judge puts it, ” whether the plaintiff’s family had so far acquiesced in the purchase and occupation of the premises by Bazazeggi and his family as to be estopped from setting up the present claim.” The facts found by the trial Judge are set out as follows

Bazazeggi, a Hausa soldier and father of the first and second defendants, purchased the plot in question in 1902 from Abudu Karimu, who was described in the conveyance (possibly incorrectly) as the son of Ajia. Ijesha Fahbon, the original

head of the Compound and holier of the Crown Grant relating to it. The conveyance was duly registered and a house was built on the plot purchased. Despite some attempt by the plaintiff to prove that the house was built by Karimu I am satisfied from the evidence of the actual builder who, though a very old man, was fortunately still able to come forward, that it was actually built and paid for by Bazazeggi and further that it was at that time the most important building in the Compound. There is some doubt whether Bazazeggi himself ever occupied the building, but his children have done so uninterruptedly ever since and the second defendant is in occupation to-day. In 1988 first and second defendants having fallen out an action for partition or sale was brought and the parties failing to agree as to partition a sale was ordered and the third defendant purchased the property at public auction on October 21st, 1988.”

This final sentence is, so far as I can ascertain, not quite accurate, the order of the Court made on the 11th October, 1988, in the partition suit was, ” There will be an order for sale if the parties cannot agree to partition.”

There appears to have been no ” final ” or formal order for sale, nor is there any indication of what the Court would order to be sold, whether an absolute title or merely as is the usual practice, the right title and interest of the contending parties.

After carefully considering the evidence the trial Judge held that the plaintiff’s family had acquiesced in the purchase and occupation by the Bazazeggi family, and so dismissed the claim without going into any other issues and without calling upon the third defendant for her defence.

Now when this case was before the lower Court that Court was at a disadvantage compared with this Court on the final hearing of the appeal ; because there was then pending before the Privy Council an appeal in the case of Brimah Balogun (Si Others v. Saha Chief Oshodi, a case which has some elements of similarity to the present, whereas this Court has had before it the advantage of the Privy Council’s judgment in that case (though not yet reported).* Moreover at the time of the trial of this case the majority decision of the full Court in that case was good law and had to be regarded, whereas it has now been set aside by the Privy Council judgment.

It is idle to speculate as to what decision the trial Judge would have arrived at if he had had the guidance of the recent Privy Council judgment, but it is obvious that this Court must consider de novo the facts of the case in the light of that judgment.

It seems to me that in these cases there are two things which must be distinguished. The first is acquiescence in occupation over a period, which would bar the original overlord from bringing an action for ejectment as in the case of Akpan Atvo v. Cookey Gant

(2 N.L.R. 67). And in the second is such acquiescence as would serve to pass the original rights of the overlord to the occupier. Very much more is required to establish the second than the first.

In the present case the respondents’ counsel admitted that there was no evidence to show that the plaintiff or his family knew of the conveyance executed in 1902 until, when he did hear of it, he instituted these proceedings. This being so, even though it be admitted that the family acquiesced in the first defendant’s occupation, how can it be argued that the plaintiff or his family acquiesced in the alienation from them of their reversionary rights when they had no knowledge that such rights were being challenged or interfered with ? There is no suggestion that the family gave prior acquiescence to the conveyance or sale, and I consider that in this case, just as the Privy Council held in the Balogun case; the evidence is quite insufficient to justify a finding that the family acquiesced after the event in the conveyance in question, which would have the effect of abrogating the family’s reversionary interest.

For these reasons I am of opinion that the finding of the lower Court that the plaintiff’s family had acquiesced in the purchase by the Bazazeggi family was wrong, and that so far as the first defendant is concerned the plaintiff should be granted the first alternative claimed in his writ, viz. an order to set aside the sale. The Court below appears to have considered fully all the defences set up by the first defendant, and I see no reason to give him any further opportunity for defence.

But the third defendant’s defence has not yet been considered, and the case will have to go back to the lower Court to hear it and decide upon it.

I. am of opinion that the appeal should be allowed and the judgment of the lower Court, including the award of costs, should be set aside, and that the case should be remitted to the lower Court to hear the third defendant’s defence and then give final judgment on the basis already indicated, and to make a fresh award of all the costs in the lower Court.

PETRIDES, C.J., GOLD COAST.

I concur.

WEBBER, C.J., SIERRA LEONE.

I concur.

The following Order was made :-

The appeal is allowed and the judgment of the lower Court, including the award of costs, is set aside, and the case is remitted to the lower Court to hear the third defendant’s defence and give final judgment on the basis indicated in the judgment of this Court and to make a fresh award of all the costs in the lower Court. The costs already paid by the appellant to the respondents are to be refunded. The appellant is awarded costs assessed at forty guineas against the first defendant-respondent in this Court.

The other defendants-respondents are to bear their own costs in this Court.