J.B. Atunrase & Ors. V. Samuel Charles Oladipo Phillips & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, .J.S.C.

It is agreed by both parties herein that the Oloto family of Lagos had the radical title to the land in dispute. Plaintiffs traced their root of title by purchase through one Bello Bashorun to the Oloto family. The defendants also traced theirs by purchase from the same Oloto family.

At the trial, the plaintiffs tried as they could but were unable to produce in evidence the conveyance by which Bello Bashorun bought from the Oloto family in 1910 a large piece or parcel of land that included the land in dispute. In spite of this lapse in their case the learned trial Judge gave judgment in their favour. The defendants appealed unsuccessfully to the Court of Appeal and have now further appealed to this Court contending

(a) that as the plaintiffs failed to establish their root of title as pleaded their action ought to have been dismissed and

(b) that section 129 (now section 130) of the Evidence Act was wrongly applied in favour of the plaintiffs.

The Plaintiffs had pleaded inter alia as follows:-

“4. The plaintiffs aver that the said hereditament (hereinafter referred to as the land in dispute) originally belonged to the Oloto chieftaincy family of Lagos from time immemorial under native law and custom and that the said Oloto family sold the land in dispute to one Bello Bashorun by virtue of a deed of Conveyance registered as No.66 at page 169 volume 134 at Lagos Registry and dated 19th January 1910.

5. That the said Bello Bashorun having exercised diverse acts of ownership on the land in dispute nec vi nec clam nec precario later sold 2,98O acres of the land to one Salami Ajigbotinu for an estate in fee simple in possession free from all incumbrances by a deed of conveyance executed on the 26th day of January 1920. The said Deed of Conveyance will be tendered as EXHIBIT during the Trial.
6. That the said Salami Ajigbotinu exercised maximum acts of ownership on the land without let or hinderance from any quarters but later made an absolute sale of the land in dispute to one Mrs. S.C. Phillips, mother of the first plaintiff for a sum of 250pounds being full purchase price of the said land as shown by the purchase receipt dated 14/4/53 and duly signed by Salami Ajigbotinu in favour of Mrs. S.C. Phillips.
7. That the said Mrs. S.C. Phillips died on the 26th day of December, 1956, while she had not obtained a Deed of conveyance for the land in dispute, and having by her will dated the 24th day of December, 1956 and proved on the 31st day of January 1957 in the probate Registry in Lagos by the Executors and Executrix named therein, devised certain real Estate including the Land in dispute to his son Mr. S.C.O. Phillips the first plaintiff in this suit.
8. The plaintiffs aver that by a Deed of conveyance dated the 27th day of August, 1959 and registered as No. 22 at page 22 in volume 340 of the Lands Registry in the office at Ibadan: Salami Ajigbotinu as Vendor and

(1) Marian Abimbola Silva

(2) Samuel Charles Oladipo Phillips

(3) William Olatunde Bucknor as

Executors and Executrix of the said Mrs. S.C. Phillips (Deceased) conveyed the Land in dispute to Samuel Charles Oladipo Phillips as sale beneficiary thereof for an estate in fee simple in possession free from all incumbrances.

9. That subsequently the first plaintiff as sole Beneficial owner laid out the land in dispute into 18 building plots, as evidence by the Layout plan No. CT51/66A and No. CT/165/66, 15 of which plots were sold to the 2nd, 3rd, 4th, 5th, 6th, 7th and the 8th Plaintiffs respectively.
10. That the first plaintiff and his predecessors-in-title have remained in absolute and undisturbed possession of the land in dispute from time immemorial, which land was fenced with concrete pillars and wires immediately after he bought the land in dispute, and part of the pillars are still visible today’”

Paragraphs 12 – 23 of the amended Statement of Claim recited how the 1st plaintiff sold portions of the land to the 2nd – 8th plaintiffs and how each of them went into possession. In paragraphs 24 – 26 the plaintiff complained about the defendants’ interference with their enjoyment of their respective parcels of the land in dispute.

They jointly claimed:

(1) Declaration of Title fee simple to all that piece or parcel of land situate, lying and being at Pedro Village Bariga in the Ikeja Division of the Lagos State of Nigeria.