Kelani Banjo & Anor Vs Lamidi Aiyekoti & Anor (1973)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, J.S.C.

The appellants are the defendants and the respondents are the plaintiffs in an action (Suit No. LD/259/65) tried by Adedipe, J., in the Lagos High Court. The claim as amended was for declaration of title in fee simple or under Yoruba native law and custom to a piece of land at Adana Village, Surulere, Lagos. They also claimed the sum of 2,000 pounds (Two thousand pounds) as general damages for trespass committed by the 1st defendant, his servants and/or agents on the said land during the period 1963 to 1965; they also asked for an injunction restraining both defendants, their servants and/or agents from committing further acts of trespass on the land. Finally, they asked for an order directing the two defendants and their servants or agents to surrender possession of the said land to the plaintiffs.

The proceedings were commenced by one Madam Moriamo Moola as sole plaintiff but she died before the hearing commenced, and the present plaintiffs who are her personal representatives were substituted by order of court on 30th October, 1967. It is common ground that the radical title in the land in dispute edged green in the plan (exhibit R) is in the Oloto family.

The plaintiffs’ case is that, in or about the year 1913, the Oloto Chieftaincy family of Lagos took a decision to partition a large area of the family land at Surulere among some of its members. In pursuance of this decision, Chief Ajayi Oloto, the head of the family, partitioned the said land among some of the members of the family, and with the consent of the family, made an absolute grant of a specified portion to each of them. Among those to whom such grant was made was one Fatade Tokosi. The said Fatade Tokosi was put in possession of the portion granted to him by the family and he exercised all rights of ownership over it. This portion included the land now in dispute. In Suit No. 175/1915 (Fatade Tokosi v. Chief Ajayi Oloto), the said Fatade Tokosi established his right, title and interest to the said land.

In or about 13th April, 1918, Fatade Tokosi sold a portion of the land granted to him, which included the land now in dispute, to one William Fafunmi Onimole, and although he did not execute a conveyance in his favour, he, however, put Onimole in possession of the portion of land sold to him and he (Onimole) exercised all rights of ownership over it such as receiving the compensation paid in respect of another portion of the land sold by him (Onimole) to one Abudu Disu and later acquired by Government as shown in exs. O and P. When Chief Tiamiyu Fagbayi Oloto, the head of the Oloto family at the time of the acquisition, was notified by Government in a letter No. 04555 (19) 3 of 7th June, 1949, (Exs. 5 and 3) of the claims of other persons, including Abudu Disu, to various portions of the land that had been acquired, he replied in a letter dated 13th June, 1949 (Ex. Q) as follows:

“The Commissioner of Lands

Lagos.

Dear Sir,

Re Acquisition of Land at Surulere

Government Notice No. 1292

With reference to your letter dated the 7th June, 1949 No. 04555/(19)/3, I have to inform you that I admit all the claims referred to therein of the persons named and that they are entitled to receive compensation for the land they claim.

Yours faithfully,

(Sgd.) CHIEF T. O. FAGBAYI OLOTO.”

In 1943, William Fafunmi Onimole sold a portion of his land which included part of the one now in dispute to one Ashimowu Kofoworola and gave her a deed of conveyance (ex. D1) in respect of the said land. He also put Kofoworola in possession of the said land and she also exercised rights of ownership over it. Six years later, this is in 1949, Kofoworola who incidentally was the wife of one Mustapha Jolaosho sold the said land to one Nimota Laloko (2nd P.W.) and executed a conveyance (ex. D) in respect of the land in her favour. Nimota Laloko went into possession and exercised all rights of ownership such as putting palmwine tappers on the land which contained many palm trees. By a deed of conveyance dated 26th October, 1951 (ex. C), Nimota Laloko sold and conveyed the land sold to her by Kofoworola, which included the land now in dispute, to Moriamo Moola and put her in possession. She exercised all rights of ownership over the land without any disturbance by the members of the Oloto Chieftaincy family.

Earlier, in 1943, Onimole, by a deed of conveyance dated 30th June, 1943 (ex. D2), had sold another portion of his land adjoining the portion which he had earlier sold to Ashiawu Kofoworola to one Mustapha Jolaosho (Kofoworola’s husband). The portion sold to Jolaosho included the remaining portion of the land now in dispute. Jolaosho was duly put in possession and he performed acts of ownership on the land until 1947, when he sold the land to Nimota Laloko and put her in possession. He executed a deed of conveyance (ex. D3) in Laloko’s favour.

In October 1951, Laloko sold the portion she bought from Jolaosho to Moriamo Moola and executed a conveyance (ex. C1) in Moola’s favour. She also put her in possession.

These two plots of land-the one acquired by Laloko from Kofoworola and the other one acquired by her from Jolaosho-are adjacent and are edged “pink” on the plan (exhibit R). The portion now in dispute is verged green within this larger portion edged “pink”. On being put in possession of the two pieces of land, Madam Moriamo Moola put a wire fence round the land. She also performed the following acts of ownership:

(i) She erected a signboard bearing her name on the land;

(il) In Suit No. LD/334/61, she successfully sued one Ikubolaje in respect of a portion of the land. The claim was for declaration of title, damages for trespass and injunction. (Judgment is dated 18/10/63-exhibit E);

(iii) In Suit No. LD/589/61, she again successfully sued one Bojuwoye in respect of another portion of the land. This claim is also for declaration of title, damages for trespass, and injunction. (Judgment is dated 24-2-64 exhibit F);

(iv) Again, on 29-1-66, Madam Moola successfully resisted the application of one Abimbola Shadipe to register the land in dispute as his own. (The decision of the Registrar on the objection was admitted as exhibit G);

(v) She put a caretaker, one Lamidi Fahm (3rd P.W.) on the land and it was this witness who put a fence round the land and who also put the signboard there. It was also this Fahm who alerted her of the trespass on the land;

(vi) One Ete who was living in the house of Odogbo was allowed to farm on the land and he planted pepper and other vegetables there;

(vii) In 1964 when she noticed that some people had made a foundation for building on the land she caused warning notices (exhibits K & L) to be pasted all round the foundation and photographs of the notices, as pasted, to be taken (exhibits M1 and M3). She also instructed her solicitor to write to those responsible.

When those found on the land continued to build in spite of the notices, Madam Moola, now deceased, commenced the present action against the defendants.

The defendants, on the other hand, denied that any piece of land including the portion now in dispute, was ever partitioned among some members of Oloto family. Their case was that the land in dispute had always been in the Oloto family until June, 1960, when part of their land, including the portion now in dispute, was sold and conveyed to one Joseph Banjo Atunrase by the Oloto Chieftaincy family by the deed of conveyance (ex. U). The Oloto duly put Atunrase in possession. Three years later, the 1st defendant bought the land from Atunrase for 400 pounds and was put in possession. The land was conveyed to him by Atunrase by deed of conveyance dated 19/2/65 (Ex. S) and by a supplemental deed dated 25/10/65 (ex. 6). Before obtaining the two deeds of conveyance, however, the 1st defendant in 1963 had erected a building costing about 5,000 pounds on the land. A year later, in 1964, still without a conveyance from Atunrase, the 1st defendant sold the house which he had just built on the land to the 2nd defendant for 4,000 pounds that is 1,000 pounds less than what it cost him to build. In July, 1966 he obtained a first registration of the land and obtained the Land Certificate (ex. 3). In August, 1966, he transferred the land to the 2nd defendant by the instrument of transfer (ex. 4). The transfer to the 2nd defendant was made more than a year after Madam Moola had instituted the action on 17th May, 1965.

Chief Oloto (Emanuel Ogundimu 1st D. W.), who testified for the defendants, stated that his family did not make a gift of the land in dispute to anyone before its sale to Atunrase in 1960 and that the family had been in possession of it all the time. He admitted that a portion of the family land between Modele and Adana village in Surulere was given to his uncle Fatade Tokosi but explained that it was given to him for use and occupation only. When pressed further on this point, he replied as follows:

“We don’t generally give land absolutely to members of the family but in certain cases we do. What we do most is to give land to members for use and occupation only. Bakare Ashiru was a member of my family, he was given family land absolutely. The family executed a conveyance to cover the transaction . . . My family has never partitioned their land.”

Under cross-examination, Chief Oloto admitted that his family had no record of their dealings in family land. To further questions, he replied as follows-

“I have sold quite a number of land to Atunrase. Some of these have been the subject of court actions. I am always in court giving evidence. I sold lands to the Da Costas and these have been causes of litigations.

Chief Ashafa Tijani, Chief Imam, was a principal member of my family. He was a year older than me. He should be 82 this year. He was at a time the Regent of the family. He was an enlightened man. He knew the history of the family.

If Chief Ashafa Tijani said in court that the grant to Fatade Tokosi was absolute he was wrong to have said so.”

When questioned about the actual land now in dispute, he replied;

“I did not go to the land in dispute. A Chief does not go to inspect any land.

It is true that my family was paid Vz of the compensation received by the people. It is not true that the land in dispute was part of the family land given to Fatade Tokosi absolutely. It is not true that other people not members of my family have settled on the land given to Fatade Tokosi since 1931, undisturbed by the Oloto family. My family has never taken Onimole to court, we had no business with him. My family never took Mustapha Jolaosho to court. My family never took Ashimowu Kofoworola to court. My family never took Moriamo Moola to court. I don’t know if all these people have actually been on their respective lands.”

In his own testimony the 1st defendant admitted that he did not execute any conveyance in favour of the 2nd defendant when he sold the house to him in 1964 for 4,000 pounds. He also admitted that there was no written agreement between him and the second defendant at the time of the sale. He however denied that the transfer was fictitious. He admitted that he knew that the present case started in 1964 but he denied that the house was sold to him in 1966.

Joseph Banjo Atunrase (5th D.W.), who originally bought the land in dispute from the Oloto family, admitted that the land in dispute is within the two lots which he bought from the Oloto family. Although he admitted that he registered the lands he bought under deed and not under the Registration of Titles Act and that before he bought the land in dispute, he personally conducted a search in the Lands Registry, he said he did not see any of the six documents (exhibits D, D1, D2, D3, C & C 1) on which the plaintiffs based their claim to the land. When questioned about the judgment (Ex. F) in Suit No. LD/589/61, he replied;

“I have sold the lands to different people. I sold to the 1st defendant, 2. Mr Abdul, 3. Madam Abdul. I sold to Bojuwoye. I knew that Madam Moriamo Moola instituted an action against Bojuwoye. Madam Moriamo Moola succeeded against the defendant Bojuwoye who bought the land from me. The land of Bojuwoye is adjacent to the land in dispute.”

The 2nd defendant also denied that the sale of the house to him by the 1st defendant was fictitious. He said the house on the land in dispute was sold to him for 4,000 pounds out of which he first paid 3,000 pounds and the balance later. He also said the property had since been registered in his name.

In considering the evidence adduced before him, the learned trial judge observed, quite rightly we think, that what was in dispute was not whether the Oloto family made a grant of a portion of the family land to Fatade Tokosi, an important member of the Oloto family and the predecessor in title of the plaintiffs, but whether the grant made to him was absolute. He then refuted the version given by Chief Ogundimu and found as follows:

“On the evidence before me, I hold that the grant of family land to Fatade Tokosi was an out and out grant, i.e. an absolute grant. If the proper authorities with the proper consenting parties made an outright grant without any reservation, they cannot say later that reservations of some kind were implied. (See Golightly and Anor. v. Ashrifi and Ors. 14 W ACA 676 at p. 677). Although there is no conveyance in respect of the grant made to Fatade Tokosi, I do not expect every such grant made years ago to be evidenced by a deed of conveyance. The grants were made to members of the family and not strangers.”

While still dealing with the grant to Fatade Tokosi, the learned trial judge referred with approval to the decision of Lambo, J., in Suit No. LD/589/61 (exhibit F) delivered on 24th February, 1964 in which the learned trial judge, after saying that he accepted the evidence that the Oloto Chieftaincy family made a gift of family land to Fatade Tokosi, observed as follows:

“This is hardly in controversy as the principal defence witness, Ashafa Tijani, himself admits that an absolute gift of land was made to Fatade Tokosi.”

The learned judge also referred to the evidence that each of the previous owners, including the plaintiffs, had exercised, in one way or another, acts of ownership in respect of the land in dispute. He then observed that these acts of ownership from 1943 to 1965 were open and continuous and that during this period none of the previous owners was challenged by the Oloto family.

In considering the case for the defence, the learned trial judge, as we have pointed out earlier, rejected the testimony of Chief Oloto (1st D. W.) that the grant to Tokosi was not absolute. He also considered the evidence of the 1st defendant and pointed out that, at the time he bought the land from Atunrase (5th D.W.) in 1963, he did not see Atunrase’s conveyance and did not ask for it. The conveyance from Atunrase (exhibit S) to him was in fact executed on 19th February, 1965. The learned trial judge then found as follows:

“Although the first defendant said that he sold the land to the 2nd defendant in 1964, I must say that I do not believe him. This action was instituted in May 1965, and the instrument of transfer is dated 3rd August, 1966, a date after the case had already been in court. The second defendant did not produce a single receipt. He said he paid 3,000 pounds to the 1st defendant in the presence of witnesses but not one of these witnesses was called. There was also no receipt for the balance of 1,000 pounds which he said he paid later. A runner and a lender were mentioned but none of these was called to testify. The purported transfer of the land and the building appears to me to be a ruse, a subtle and calculated attempt to deceive the court, and not a genuine transaction. The 2nd defendant is not, in my opinion,a bona fide purchaser for value. It is my view that no money passed between him and the first defendant.” The learned trial judge also observed that it was clear from the evidence that the 1st defendant did not make a proper search in the Lagos Lands Registry before buying the land from Atunrase. He then gave judgment for the plaintiffs as claimed in their writ, and awarded them 300 pounds as damages for trespass, after finding as follows

“The plaintiff did everything to bring it to the notice of the 1st defendant that she was the owner of part of the land on which the house was built. He ignored everything and completed the building. It is unfortunate that the old woman died while this case was in progress. It was decided in J. W. Ramsden Bart v. Lee Dyson and Joseph Thornton (1866) 1 L. R. English and Irish Appeals, 129, that if a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from afterwards claiming the land, with the benefit of all the expenditure upon it.”

In the appeal now before us against his decision, Mr Oseni, learned counsel for the appellants, made a number of submissions. Of all the points urged upon us, those which merit any serious consideration are as follows: Firstly,it was submitted that the respondents could only succeed in their claim if they could prove that the grant to Tokosi was absolute and also that the land in dispute falls within that particular land. It was also submitted that there was no evidence of an absolute grant. Even if there was such proof, the land given to Tokosi had nothing to do with the land in dispute. In the absence of any evidence connecting the land granted to Tokosi with the land in dispute, the respondents’ claim should have been dismissed. Secondly, it was submitted that the learned trial judge should not have referred to the judgment of Lambo, J., in exhibit F to buttress his finding that the grant to Tokosi was absolute.

Learned counsel further submitted that so long as the appellants’ names were on the register of titles, no declaration could be made in favour of the respondents. He conceded, however, that there was no evidence whatsoever that any notice of the investigation of the title was ever served on the respondents before the appellants’ title was registered. Learned counsel, nevertheless, submitted that even without registration, the appellants have a better title because it was the Oloto family who had the radical title who passed on the title in the land to them. Finally, Mr Oseni contended that having been granted declaration of title and possession which implied that the respondents were not in possession, the learned trial judge should not have granted them damages for trespass.

In reply Mr L. V. Davis, learned counsel for the respondents, submitted that there was nothing extraneous in the judgment (ex. F) since Ashafa Tijani, a Regent of the Oloto family, was a privy to that judgment. Mr Davis also pointed out that, as Chief Oloto did not say that he did not know when Ashafa Tijani gave his evidence, he was bound by the finding in that case. As regards the land granted to Tokosi, Mr Davis conceded that there was no survey plan of the land. He urged it upon us to hold, however, that because both sides said that the land is at Adana Village, we must presume that the area of land given to Tokosi is all the land at Adana Village, and as the learned trial judge had held that the grant to Tokosi was absolute, the Oloto family had nothing to sell to Atunrase. Therefore, since the appellants had no title to the land, the appeal should be dismissed.

A perusal of the pleadings and the evidence adduced in support shows clearly that both parties know the land in dispute. Furthermore, both parties are aware that it was part of the land granted to Fatade Tokosi. What was in dispute was whether or not the grant to Tokosi was absolute; if it was not, whether the radical title still remains with the Oloto family; and if it is still in that family, whether the family could pass the title to Atunrase who later sold to the Ist defendant.

In our view, all issues now being canvassed at the hearing of this appeal regarding the land in dispute had been canvassed in Suit No. LD/589/61-Moriamo Mooia v. J. O. Bojuwoye decided by Lambo, J., on 24th February, 1964. Moriamo Moola, the original plaintiff in the case in hand, was the plaintiff in that case. The defendant in that case bought the piece of land in Adana Village, then in dispute, from one J. B. Atunrase who had previously bought the land from the Oloto family. This same Atunrase is also the person who bought the land now in dispute from the Oloto family and sold it to the 1st defendant who in turn sold or purported to sell the same land to the 2nd defendant. About these two pieces of land (i.e. the land in dispute in the 1964 case and the land now in dispute), Atunrase, it must be recalled, testified at the hearing of the case in hand as follows:

“I sold to Bojuwoye. I knew Madam Moriamo Moola instituted an action against Bojuwoye. Madam Moriamo Moola succeeded against the defendant Bojuwoye who bought the land from me. The land of Bojuwoye is adjacent to the land in dispute.”

The learned trial judge in the 1964 case dealt at length with the grant made by the family to Fatade Tokosi of which the land in that case is a portion. For the sake of clarity the relevant portion of this judgment (exhibit F) which still subsists is quoted in extenso hereunder ,

‘According to the plaintiff the land in dispute forms a portion of a larger piece of land which the Oloto family alienated absolutely to one Fatade Tokosi about 1909 under native law and custom. Fatade Tokosi himself was a member of that family; he was a great grandson of one Bello, a former Chief Oloto. In proof of the gift the plaintiff produced and tendered court proceedings (exhibit F) between Fatade Tokosi and Chief Ajayi Oloto and Oki. Paragraphs 3, 4 and 5 of the statement of claim dated 17th November, 1915, and signed by Eric O. Moore, Esq., plaintiff’s solicitor, read as follows:

‘3. About six years ago the members of the family met together and gave the land in dispute to the plaintiff as a member of the said family.

4. That the defendant Chief Ajayi Oloto approved of the action of the members of the family and gave his consent thereto.
5. The plaintiff took possession of the said farm.’

These averments were admitted in paragraph 1 of the statement of defence of Chief Ajayi Oloto as filed by his solicitor, E. J. Alex Taylor, Esq.

The writ itself reads as follows:

‘In the Supreme Court of Nigeria

Suit No. 174 of 1915

FATADE TOKOSI . . . . . .Plaintiff

v.

CHIEF NAYI OLOTO

and

MOMODU OKI…..Defendants

The plaintiff’s claim is to set aside the sale of all that piece or parcel of farmland situate at Adana Village being the portion of Oloto’s land allotted by the family to the plaintiff.

Dated the October, 1915.

(Sgd.) Eric O. Moore,

Plaintiff s Solicitor.

Plaintiffs address- Tokosi Street, Idumagbo, Lagos.

1st Defendant’s address-Oto

2nd Defendant’s address-Ashongbon Quarter.’

It is sufficient to say that the action did not proceed to trial; it was settled as per Terms of Settlement dated 5th December, 1916. For the present purpose paragraph 1 thereof is significant. It provides that

‘The sale of the land in dispute in the above matter made to the defendant Momodu Oki by the defendant Ajayi Chief Oloto is to be set aside and the land restored to the plaintiff.’

I am of the view that the gift to Fatade Tokosi was an absolute gift validly made-vide Golightly v. Ashriji 14 W.A.C.A. 676. There is no conveyance of the gift of the said land but this, however, is hardly expected of transactions of this nature concluded by illiterate natives-vide Bintu Alake v. Awawu 11 N.L.R. 39. The land in dispute has descended through a line of purchasers until 1951 when it went to the plaintiff. There is evidence that each of plaintiff’s predecessors in title had been in possession of the land and had exercised thereon acts of ownership of a kind, enough to provoke a claimant to action.”

Lambo J., also found in the case referred to above that the land then in dispute formed part of the land originally granted by the Oloto Chieftaincy family to Fatade Tokosi about 1909 and that that land was the subject matter of the 1915 court proceedings.

It will be recalled that Ashafa Tijani an important member of the Oloto family, was one of the principal witnesses who testified for Bojuwoye, the defendant in the 1964 case. Furthermore, Atunrase, who had sold the land then in dispute to Bojuwoye is the same vendor of the 1st defendant in the present case. It will also be recalled that Atunrase testified that the land in dispute in the 1964 case and the one now in dispute are adjacent. Finally, it will be recalled that the respondents in the case in hand averred in paragraphs 10 and 11 of their amended statement of claim as follows

“10. In Suit No. 174/1915, Fatade Tokosi versus Chief Ajayi Oloto, the said Fatade Tokosi successfully established his right, title and interest to or in the land in dispute.

11. In or about the 13th of April, 1918, the said Fatade Tokosi sold a portion of the said land granted him, which included the land now in dispute, to one Williams Fafunmi Onimole, then of No. 3 Erelu Square, Lagos, but did not execute a conveyance of the same in his favour.”

These averments which, from the judgment of Lambo J., appear to have been successfully pleaded in the 1964 case clearly established that the land in dispute in that case and that that in dispute in the present case are portions of the larger area of land granted by the Oloto family to Fatade Tokosi in 1909. Therefore, as between the respondents in the present case on one hand and the Oloto family and Atunrase (5th D.W.) on the other, the findings of fact both as to the area of land granted to Fatade Tokosi and as to whether the grant was absolute or not, are conclusive; and it is not now open to the appellants who derived their title from Atunrase who had bought part of the land from the Oloto family, to re-open the issues and question, in a rather subtle way, the validity of these findings of fact as they had cleverly tried to do in the present case.

Quite apart from the earlier finding as to the grant to Fatade Tokosi to which the learned trial judge in the case in hand adverted, there is also the overwhelming evidence, which the judge also accepted, of various acts of ownership exercised, without let or hindrance, first by Fatade Tokosi himself, then by Onimole, followed by Kofoworolo and Mustapha Jolaosho, then by Nimota Laloko who had acquired the two portions, and then finally by the late Moriamo Moola on various occasions. It must also be remembered that Chief Oloto (1st D.W.) admitted that his family never took any of the respondent’s predecessors in title to court over the land in dispute.

In view of the proof of the absolute grant to Fatade Tokosi and of the overwhelming evidence of acts of ownership by Moriamo Moola and her predecessors in title, spreading over a number of years from the time Onimole bought the land in dispute in 1918 up till 1965, which the learned trial judge accepted, we see no merit whatsoever in the appeal.

It is necessary, however, to make the declaration of title granted to the plaintiffs by the learned trial judge more specific. Accordingly, we hereby grant the plaintiffs declaration of title in fee simple to the piece of land at Adana Village verged green in the plan (exhibit R) and this shall be the judgment of the court.

There is one other point. The claim for possession, in the circumstances of this case, is inconsistent with the claims for damages for trespass and for an order of injunction, both of which assume that the plaintiffs/respondents were lawfully in possession at the material time. We have had occasion to deal with this point before in Jimoh Adebakin v. Sabitiyu Odujebe (S.C. 42/70) reported in (1972) 6 S.C. 208 at page 216, where we observed as follows

“It seems that the evidence accepted by the learned trial judge was that the plaintiff was always in possession before the defendant entered on to land vi et arms. If that is so, a claim for recovery of possession is inappropriate for a trespasser does not by the act of trespass secure possession in law and if the plaintiff was always in possession then the defendant can only be liable for damages in trespass and to an order of injunction.”

The order for possession made by the learned trial judge is, therefore, irregular and is accordingly set aside. However, if the defendants/appellants are, in fact, still in possession of the land in dispute and the buildings thereon, their possession, being that of a trespasser, is unlawful and is also in breach of the order for an injunction herein confirmed.

Save as we have stated above, the appeal is dismissed with costs to the plaintiffs/respondents assessed at 125 Naira.

Appeal dismissed; but declaration of title amended and order for possession set aside.

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Other Citation: (1973) LCN/1737(SC)