L. B. Folarin V. Oyewole Durojaiye (1988) LLJR-SC

L. B. Folarin V. Oyewole Durojaiye (1988)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

This appeal concerns title to land and the short point in it is whether the vendor from whom the Appellant bought and obtained a transfer of title, herself acquired any interest in the land which she could convey to the Appellant.

The Appellant was the Plaintiff in the High Court of Oyo State holden at Ibadan where he filed a suit – Suit No. 1/199/79 against the Respondent as Defendant claiming:

(1) A declaration that the Plaintiff is entitled to be granted a Certificate of Occupancy under the Land Use Decree in respect of plot 98 Orowuyewuye Layout, Oke Ado, Ibadan shown on survey site Plan No. LL. 3769 dated 10th September, 1965;

(2) N1,500.00 damages for acts of trespass committed and being committed by the defendant on the plaintiff’s land at plot 98 Orowuyewuye Layout Oke Ado, Ibadan;

(3) Injunction restraining the defendant, his agents, his servants and/or anyone through him from committing any further act of trespass on the said land.

Pleadings were filed, served and exchanged and at the close of pleadings, the issues for trial in the case came before Adeyemi, J. for hearing. After hearing evidence of the plaintiff/appellant and his witnesses and the defendant and the addresses of counsel, he delivered a considered judgment granting the declaration claimed – N200.00 damages for trespass and an order of injunction together with costs assessed at N350.00 in favour of the plaintiff. In his judgment, Adeyemi, J. observed and commented:

“There is no evidence that Alhaji Giwa himself executed a deed of conveyance in favour of the said Ramota Adeoye, but nevertheless it is my considered view that she did not need a conveyance in order to acquire or transfer her interest in the land. In the absence of a conveyance or evidence from witnesses to show that the land was ‘handed over’ to her after payment, all the interest she had in the land was a mere equitable interest. See Erinosho v. Owokoniran (1965) N.M.L.R. 479 at page 483.

However, on the evidence of P.W.s 1 and 2, I hold that the equitable interest of Ramota became transmuted into a legal interest as soon as she agreed to sell the land to the Plaintiff and possession in the land (which still remained vacant when the Plaintiff bought it about 10th September, 1965 or before) was “handed over” by the 2nd p.w. to the 1st p.w. on behalf of the Plaintiff and a deed of conveyance was later executed in February, 1967. In these circumstances, I hold that the legal interest in Plot 98 Orowuyewuye Layout, Oke Ado, Ibadan, also passed validly to the Plaintiff from Ramota Adeoye by virtue of Exhibit ‘I’ which as executed before the revocation of 2nd p.w.’s power of attorney on 18th May, 1967.”

On the issue of possession, the learned judge said:

“In this case, the Plaintiff is already claiming title in the manner provided for the Land Use Decree, but the Defendant is admittedly in actual physical possession and is also claiming title. Consequently, both parties, as I have already found, are claiming through the same source, i.e. through Orowuyewuye family. But having now found that the land is properly sold to Ramota Adeoye who has also transferred valid legal interest in the same to the Plaintiff by virtue of the conveyance dated 7th February, 1967 (although he in fact took vacant possession about 10th September, 1965 or earlier) and having again found that the same plot of land was sold to the Defendant by the Orowuyewuye family in 1971 after they and their attorney had sold it to the Plaintiff sometimes in 1965, I hold that the Plaintiff has a better title than that of the Defendant. See Olusegun Durojaiye v. Raufu Alade and Anor. O.Y.S.H.C. (Part 11) 146 at 149.

………………..

Also in Ogo Ibeziako v. Nwagbogu (1973) 1 N.M.L.R. 113 at 124, Coker, J.S.C. (as he then was) stated as follows inter alia:

‘If the evidence given by and on behalf of the Plaintiffs with respect to their own acts of possession on the land is accepted, as indeed it was, then clearly the Defendant had obtained whatever possession he had of the land in dispute by the very act of trespass which has grounded this case.’

I endorse this view in toto as respects the possession of the Defendant in this case and find on the totality of the evidence before me that the Defendant’s possession is adverse possession. Consequently, the issue of laches or acquiescence does not arise.”

Continuing, the learned trial judge said:

“The adverse possession of the Defendant therefore constitute trespass which has been described in Renner v. Annan (1935) 2 W.A.C.A. 258 by Deane, J. thus:

‘A trespass to land is an entry upon land or any direct interference with possession of land.’

The Plaintiff is claiming the sum of N1,500.00 as damages for trespass although hardly does the statement of claim focus on the particulars of trespass alleged but for the facts provided by the defence and some documents tendered which defined the enormosity of the trespass committed……. As regards the claim for injunction, there is sufficient evidence before me as to the certainty and identity of the land in dispute. See Oluwi v. Emiola (1967) N.M.L.R. 339 at 340 and Rotimi v. Mrs. McGregor (1971) 1 N.M.L.R. 289 at 290. I therefore find that the Plaintiff is entitled to an injunction and it is hereby granted.”

The Defendant now Respondent herein was not satisfied with the decision and so he appealed to the Court of Appeal against it and won. In his notice of appeal, the Defendant set out four grounds of appeal and they read:

“1. The trial judge erred in law when he held that Ramota Adeoye had a valid title to the land in dispute which she transferred to the Plaintiff after he had held that Kaliatu M. Orowuyewuye was alleged to have received money from her had no right to sell while the powers of attorney were not revoked and that Alhaji Giwa who held the powers of attorney did not execute a Conveyance to Ramola Adeoye. Furthermore, there was no evidence of any valid sale under English Law or customary law to Ramota Adeoye which she could transfer to the Plaintiff. The trial judge thereby came to wrong conclusion by granting Plaintiffs claims to certificate of occupancy, awarding two hundred NAIRA (N200.00) damages for trespass on the basis of possessory right based on title and granting injunction against the Defendant when he should have dismissed Plaintiffs claims.

2. The trial judge erred in law when he held that though Ramota Adeoye had an equitable interest but that the equitable interest was transmitted to legal interest when she agreed to sell the land in dispute to the Plaintiff. The law in relation to land is that a person cannot transfer a greater interest than what that person had in the land. The trial judge thereby came to a wrong conclusion which led to his granting Plaintiffs claims when he should have dismissed Plaintiffs claims.
3. The trial judge erred in law when he awarded damages for trespass against the Defendant who had been in possession for nine years and who, if the correct law had been applied, should be held to have a better title. The trial judge thereby came to wrong conclusion when he held the Defendant liable in trespass.
4. The trial judge erred in law when he granted injunction against the Defendant when the Plaintiff has neither on correct law proved his title or be entitled to possession. The trial judge thereby came to a wrong conclusion by restraining the Defendant, his agents and privies from entering the land in dispute.”

Two supplementary grounds of appeal were, with the leave of the Court of Appeal, also filed and argued. These are without their particulars as follows:

1. “The learned trial judge misdirected himself in law when he held as follows:

‘that the Plaintiff was prior in point in time as to the purported sale to one or other of the two…I am satisfied and I find as a fact that the Plaintiff purchased Plot 98 by or before the 10th September, 1965……from Ramota Adeoye who herself bought the same from the Orowuyewuye family through the instrumentality of Alhaji Karimu Olasupo Giwa, Attorney to the Orowuyewuye family……..the only person who had legal capacity to deal with the Orowuyewuye layout at Oke Ado at the time Ramota Adeoye purported to buy the land was Alhaji K.O. Giwa and no other.’

Particulars

(a) ………….

(b) ………….

(c) ………….

2. The learned trial judge misdirected himself in law in holding (at page 40 lines 24 to 32 and page 41 lines 1 to 13) that:

‘there is no evidence that Alhaji Giwa himself executed a deed of conveyance in favour of the said Ramota Adeoye, but nevertheless, it is my considered view that she did not need a deed of conveyance in order to acquire or transfer interest in the land……..’

Particulars

(a) ………………..

(b) ……………….

(c) . ……………..

The Court of Appeal heard arguments orally and by written briefs filed by the parties and delivered a well considered judgment allowing the appeal, setting aside the decision of the High Court and in its stead making an order dismissing Plaintiffs claim with costs. Uche Omo, JCA. (with Sulu-Gambari and Onu, JJCA. concurring) read the lead judgment. Uche Omo, JCA. observed:

“The crucial factor in the instant case therefore in deciding if Ramota Adeoye acquired an equitable interest is whether she was ever in possession of the land in dispute. If she was and only thereafter can that interest be transmuted or mature into a legal interest on the execution of Exhibit 1 in favour of the Respondent vide Karimu Ayinla v. Sifawu Sijuwola (1984) 5 SC 44,77. Regrettably, however, there is no scintilla of evidence of possession by Ramota Adeoye adduced by any of the witnesses or the parties. The learned trial judge never made any such finding and neglected this factor in clothing Ramota with an equitable interest in the land in dispute. The consequence of this failure to enter and remain in possession must therefore be that Ramota failed to acquire any interest, be it equitable or otherwise in the land in dispute.”

I fully endorse the observation of the learned justice of the Court of Appeal. I would only add that Ramota acquired no interest in the land either under customary law or under English Law. The Plaintiff was not satisfied with the decision of the Court of Appeal. Against that decision of the Court of Appeal, the Plaintiff has appealed to this Court and his grounds of appeal filed with the notice of appeal numbered five (5).

These grounds of appeal read:

“1. The Court of Appeal erred in law and in fact in holding that there is no scintilla of evidence of possession by Ramota Adeoye by any of the witnesses or the parties.”

Particulars

‘The evidence of p.w.1 as well as that of p.w.2 on pages 23, 24 and 25 showed that p.w.2, Alhaji Giwa declared himself as holding possession of the land in trust and on behalf of Ramota Adeoye, after she had paid for the land in 1961 and with instructions to resell it on her behalf. P.W.2, Alhaji Giwa’s possession of the land from 1961 to 1965 which he was able successfully to give vacantly to the Plaintiff in 1965 through the surveyor (p.w.1) was as agent of Ramota Adeoye, and was therefore in fact and in equity Ramota’s possession.

2. The Court of Appeal erred in law and in fact when it held that Ramota ‘failed to acquire any interest be it equitable or otherwise of the land in dispute’:

In equity a purchaser who has paid for identified property, but had not taken possession or conveyance thereof has an equitable and beneficial interest in the property which he or she can transfer to a 3rd party unless before then the vendor had parted with the said property to a stranger.

3. The Court of Appeal erred in law in not holding that by virtue of section 150 of the Evidence Act, the issue of Ramota’s title to the land was not open to the Orowuyewuye family and a fortiori to the Defendant.

Particulars

(a) Alhaji Giwa as representative of Orowuyewuye family having on the evidence declared to p.w.1 in 1965 that the land no longer belonged to Orowuyewuye family but to Ramota Adeoye and thereby making the Plaintiff to act on that representation by dealing with Ramota, it was not open in equity and in law to the Orowuyewuye family to treat the same land as its own in 1970.

(b) Alhaji Karimu Giwa representative of Orowuyewuye family witnessed the conveyance Exhibit 1 whereby Ramota Adeoye was described as ‘beneficial owner of the land’;

4. In the light of the evidence of Plaintiff p.w.1, p.w.2 and Exhibit 1, the Court of Appeal erred in law in not placing the onus on the Defendant to show that there was no ‘handing over’ to Ramota Adeoye and or that she was not in possession of the land in equity 8 and in law from 1961 to 1967 when she eventually had her interest in the land purchased and transferred to the Plaintiff.

Particulars

‘When Defendant received Plaintiffs solicitor’s letter Exhibit 5, his reply was not that Ramota was not in possession when she executed Exhibit 1 but that p.w.2’s power of attorney had been revoked by that date whereas it was not.’

5. The decision is against the weight of evidence.”

The main issue for determination in this appeal, in my view, is “whether Ramota Adeoye had any interest in the land in dispute (whether customary title, legal or equitable interest) which she could transfer to the Plaintiff/Appellant. The Plaintiff/ Appellant, however, formulated four issues for determination. These are:

1. Whether in the light of the evidence of Plaintiff p.w.1 and p.w.2, it was right in law and in fact for the Court of Appeal to hold that Ramota had no interest in the land in dispute to pass to the Plaintiff;
2. Whether the Court of Appeal was right to ignore that an equity arose in Plaintiffs favour from the evidence of Plaintiff, p.w.1 and p.w.2 which disallowed the Court for (sic) holding that the Plaintiff who had acted from the assertion of Plaintiff, p. w.2 (Orowuyewuye family’s agent) that Orowuyewuye family interest in the land had been transferred to Ramota had no title to the land in dispute.
3. Whether it was right in law and in fact for the Court of Appeal to hold that there was no evidence that Ramota Adeoye was in possession of the land in dispute after paying for it in the light of the evidence of the Plaintiff, p.w.1 and p.w.2.
4. Whether the issue of possession in fact arose in the case since the agent for the owner/family, i.e. the Plaintiff p.w.2 testified that he retained possession of the land for the Plaintiff after she had paid him and therefore witnessed the conveyance made in Plaintiffs favour (Exhibit 1).

These questions must be answered in the affirmative having regard to the hard facts provided by the evidence placed before the learned trial judge and are on record. It was wrong and indeed prejudicial to the interest of justice to have ran away from the cold facts.

The facts are not in dispute at all. They are that p. w.2 Alhaji Karimu Olasupo Giwa sold the land in dispute under a power of attorney given to him by the Orowuyewuye family to Ramota Adeoye. There were no witnesses to the sale, no handing over of possession of the land in dispute to Ramota Adeoye. There was no conveyance of the land executed in favour of Ramota. Subsequently, the Plaintiff bought the land in dispute through Alhaji Karimu Olasupo Giwa, p.w.2. It was Bello Adeoye the father of Ramota that paid for Ramota Adeoye, the price of the land and this was reflected in the statement of account prepared by p.w.2. Apart from this, it does not appear p.w.2 gave receipt for the payment and none was tendered in court. After the Plaintiff bought the land, he obtained a conveyance Exhibit 1 executed in his favour by Ramota Adeoye. This was on the 7th of February, 1967. At this time, the power of attorney Exhibits 10 and 11 executed in favour of p.w.2 had not been revoked by Orowuyewuye family. The p.w.2 did not join in the conveyance to the Plaintiff, he only signed as a witness.

The 1st recital to the deed of conveyance Exhibit 1 is interesting as it is a departure from the pleading and evidence. It reads:

“whereas the Vendor in these presents is the absolute owner of the piece or parcel of land hereinafter more particularly described by virtue of a sale and conveyance to the said vendor on the 8th October, 1961 by Karimu Olasupo Giwa of 5 Adu Street, Lagos, as attorney to Orowuyewuye family under and by virtue of a power of attorney dated 23rd November, 1960 registered as No.5 at page 5 in volume 411 of Lands Registry in the Office at Ibadan without executing a formal deed of conveyance.”

Ramota Adeoye never testified in the proceedings before the High Court. P.W.2 in his testimony said:

“The Plaintiff bought plot 98 from Ramota Adeoye through me. She bought from Orowuyewuye family through me.”

Subsequently, Orowuyewuye family revoked the power of attorney given to p.w.2. Thereafter, the family sold the land in dispute plot 98 to the Defendant/Respondent and proceeded to execute a deed of conveyance Exhibit 3 in favour of the Defendant on 15th November, 1975. This deed was later ratified by Exhibit 12. Deed of Ratification executed in favour of the Defendant on 12th September, 1975. P.W.2 Alhaji Karimu Olasupo Giwa joined other members of Orowuyewuye family to execute Exhibit 12. When the Orowuyewuye family sold to the Defendant, the Mogaji and all the principal members of the family put him in possession and executed a deed of conveyance to him.

When p.w.2 sold to Ramota Adeoye, he did not put her in possession. The question therefore is whether Ramota Adeoye acquired any interest in the land. The law on the issue is settled. Ramota Adeoye could have acquired interest in the land under customary law or under the received English or statute law.

To acquire an interest in land under customary law by purchase, there must be a valid sale payment of money in the presence of witness and delivery of possession of the land to the purchaser in the presence of witnesses.

In order to transfer legal title under English Law by purchase, there must be a valid sale payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser.[See Erinosa v. Owokoniran (supra) by Idigbe, JSC. when he, delivering the judgment of the Supreme Court said, at p.483:

“Was it a sale under native law and custom or under English law In order to transfer an absolute title under native law and custom, it is necessary that such a sale should be concluded in the presence of witnesses “who saw the actual handing over” of the property from Fafunwa branch of the family to Oladiran (see Cole v. Folami 1 FSC 66). In order to transfer the legal title under “English Law” a deed of conveyance in respect of the same should be executed in favour of Oladiran by Fafunwa branch of the Ojomo Eyisha family; if the sale under “English Law” was imperfect then, on the evidence that Oladiran bought the land and went into possession, she acquired merely an equitable interest in the land.”

Where land is sold under English law or statute law, money is paid and receipts are issued, the purchaser can only acquire an equitable interest if he goes into possession. See Ogunbambi v. Abowaba (1951) 13 WACA 222. In Orasanmi v. Idowu (1959) 4 FSC 40, Ademola, CJF. on the issue of equitable interest on land and its acquisition said:

“Appellants’ counsel relied on Ogunbambi v. Abowaba 13 WACA 222 for the first part of his argument that proof of money paid coupled with possession was enough to show that the Defendant had a better title. Now, to rely on Ogunbambi v. Abowaba 13 WACA 222 there must be in addition to the payment an undisturbed and continuous possession for many years by the claimant or by his predecessor in title under whom he claims. In other words, it is not enough that the Appellant should go into possession after the sale to him, but it is important for him to establish that he remained in possession. The learned trial judge found that though the Appellant went into possession after the sale to him, his possession was not continuous.”

It is common ground that Alhaji Karimu Olasope Giwa did not execute any conveyance in favour of Ramota Adeoye. It is common ground that he did not put Ramota Adeoye in possession as attorney for Orowuyewuye family although learned counsel for the Appellant contended that he held the possession as agent for Ramota Adeoye. The learned trial judge erroneously, in my view, found that Ramota Adeoye was in possession through p.w.2. P.W.2 was in the position of Orowuyewuye family from whom he obtained the power of attorney Exhibits 10 and 11. The powers granted included the power to sign for monies payable to the family and give effectual receipt for such payment and power to execute a deed of conveyance in respect of any sale of the Orowuyewuye family land. If a person sells his land to another and fails to put the person in possession, he retains possession. The payment of money by the other person and receipt of money by the owner does not per se amount to a transfer of possession to the purchaser. There must be either a conveyance executed in his favour or an entry into possession by the purchaser to clothe him with legal title in the 1st instance and equitable title in the 2nd instance.

P.W.2 in his testimony said under cross-examination:

“Ramota Adeoye did not obtain any deed of conveyance from Orowuyewuye family or from me.”

Earlier, he had said:

“I and other members of the family executed a deed of ratification to the Defendant in respect of the land.”

The Court of Appeal was therefore right to hold that the consequence of this failure to enter and remain in possession must therefore be that Ramota failed to acquire any interest be it equitable or otherwise in the land in dispute. She had an estate contract not reduced into writing. The Plaintiff/Appellant therefore bought no interest in the land and the conveyance Exhibit 1 conveyed no interest to the Plaintiff.

The appeal fails and is hereby dismissed. See Karimu Ayinla v. Sifawu Sijuola (1984) 5 SC 44 at 77.

The Respondent shall have costs in this appeal fixed at N500.00.

KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother Obaseki, J.S.C. which has just been delivered. I am in entire agreement with him that this appeal ought to be dismissed.

The central issue in this appeal is whether Ramota Adeoye, the Plaintiffs alleged vendor, had a valid title in the plot in dispute which she could legally transfer to the Plaintiff. In my view the answer must be in the negative.

All that was established at the trial was that p.w.2 – AIhaji Karimu Olasupo Giwa, acting as agent of the Orowuyewuye family under a power of attorney, sold that plot to Ramota Adeoye, whose father paid the purchase price. There were no witnesses to the transaction, no handing over of possession and no conveyance executed by p.w.2 in favour of Ramota Adeoye.

In the circumstances, Ramota Adeoye could not have acquired any valid interest in the plot either under customary law or under the English Law – See Cole v. Folami 1 FSC 66 and Erinosho v. Owokoniran (1965) NMLR 479. If Ramota Adeoye acquired no interest in the plot, she could not have passed one to the Plaintiff.

It is for the above reasons and for the fuller reasons in the lead judgment that I have come to the conclusion that the appeal lacks merit and should be dismissed.

SC.144/1986