Musa Afolabi Awosanya V Alhaji Algata (1965)
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The plaintiff appeals against the dismissal of his claim for possession of a piece of land at Idi-Araba, Surulere, and for £200 damages for trespass. It is common ground that the land originally belonged to the Alago-Asalu family of Itire, Surulere, and both parties claim to derive their rights from members of that family. The plaintiff’s claim is that he bought the land in fee simple from one Olowu, and that Olowu had bought in fee simple from two members of the family in whom the land had become vested as tenants in common when the members of the Aboki Bada branch of the family decided to partition among themselves an area of 84 acres which had become the exclusive property of that branch under the terms of a settlement partitioning a larger area of the family land between various sections of the family.
This settlement was arrived at in litigation in the former Supreme Court between branches of the family and made by an order of Court. The defendants’ claim is that they have been lawfully in possession of the land since before the date of the settlement as tenants of Mallam Sabo Barao Cashina, whose father was the customary tenant of Anjorin Abayomi, the head of one of the sub- divisions of the family.
The claim was resisted on a number of grounds, but the trial judge found it unnecessary to deal with more than one, on which his finding was conclusive against the plaintiff’s claim. The part of the Statement of Claim which dealt with the settlement partitioning the land between sections of the family had been traversed by the defence, and although a copy of the court order, including the agreed settlement, was produced in evidence, the plans which had been annexed when the court made its order were not produced, being, so we were told, no longer in the custody of the court. A surveyor called by the plaintiff had with him what he said had been given to him as “a plan showing the partition of Alagun Asalu family land”, but it was objected to under S. 23 of the Survey Act, as not having been countersigned by the Director of Surveys, and counsel for the plaintiff said that he was not pressing it and made no further attempt to produce ft.
There was therefore no evidence of its provenance and even if the lack of a counter-signature could be overcome the production of the plan would not, by itself, and without proof of its authenticity, establish the plaintiff’s case. The terms of settlement merely contained the area of the land allotted to each section of the family, without any means of identifying it, and on the evidence before him the judge held, rightly, that ‘there is a missing link in the chain of the evidence of the plaintiff’s title. He therefore has not proved a better right to possession than the defendants, who are in actual possession of the land and have been in such possession since 1943 at least.” He went on to dismiss the claim.
The only question seriously argued before us is whether it was proper to dismiss the claim, or whether an order of non-suit would produce a just result. It is not disputed that there was a partition of the family land, in consequence of which the branch to which the original vendors belong acquired exclusive ownership of a portion of the land. The effect of dismissing the claim for the reason given is that the plaintiff, who purchased in good faith, would be precluded from ever setting up his title against the defendants or their privies, and we think this might work an Injustice. If he should renew his present claim and produce satisfactory evidence of his title as owner, ft would remain open to the defendants to put forward once again any of the other grounds on which they have resisted it in the present suit, and no injustice or hardship to them need result.
The appeal is allowed and the order dismissing the claim is set aside, but the order of the High Court for costs will stand. An order of non-suit will be substituted for the order dismissing the claim, but the appellant shall not be allowed to proceed with a fresh suit unless he has first paid the costs of proceedings in the High Court awarded to the respondents in the present suit. Neither side has succeeded completely on the appeal and subject to any application that may be made within seven days there will be no order for costs of the appeal.
Other Citation: (1965) LCN/1232(SC)