Olayiwola Samuel V. Mr. Adewale Adedeji (1997)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A. 

This appeal is from the decision of the High Court of Lagos State whereby the learned judge (Ilori J, as he then was) entered judgment for the plaintiff, and granted him a declaration of entitlement to the issuance of a statutory certificate of occupancy in respect of land situate, lying and being at 5A Onipede Street, Surulere, in Lagos State (hereinafter referred to as “the land”); awarded him general damages for trespass and restrained the defendant, from going on the land. The appellant and the respondent in this appeal were respectively the defendant and the plaintiff at the trial. They are now referred in this judgment as plaintiff and defendant.

The background facts are that the plaintiff bought the land from the Onitire family sometime in 1966 and obtained a deed of conveyance dated 29th April, 1966 from that family. It transpired that the Daniel family was adjudged in a series of actions culminating in a decision of the Supreme Court to be owners of the land. It thus became obvious that the title obtained from the Onitire family by the respondent had become worthless. The plaintiff’s case at the High Court was that consequent upon the court declaring the Daniel family to be the owners of the land, he approached that family and repurchased from that family the land on which he had in 1967 commenced a building which he had completed up to the ground floor in 1979. The action which gave rise to this appeal was brought about by the entry of the defendant on the land. The plaintiff alleged that the defendant had forcibly taken over the land and the building thereon.

The defendant’s case at the trial in summary, was that he purchased the land from the Daniel family in April 1975 and on payment of the purchase price was put in possession thereof in 1975. He alleged that he completed the ground floor in May 1976 and moved into the house in June 1976.

Rightly, the learned judge identified as the central issue in the case, the question to whom did the Daniel family sell the land in dispute?; and as subsidiary issues, the question of possession of and erection of building on the land, there being a conflict of evidence on those subsidiary questions. After a thorough and painstaking review of the evidence he made finding of fact which can be summarised thus: The plaintiff was one of the persons who bought land from the Onitire family and obtained a conveyance from that family. His neighbour, one Alhaji Onipede also bought two plots from the same family. Those plots were adjacent to the plaintiff’s plot. The plaintiff took possession of the land in 1966. At that time the land was vacant and bushy. The plaintiff prepared a building plan for the erection of a one storey house on the land. That plan was approved in August 1977. The house designed by the plaintiff for the first floor in the said plan was identical in all respects with the accommodation shown by evidence of both the plaintiff and the defendant to be on the first floor of the house now in dispute. The plaintiff completed the building up to first floor in 1979. After defeat of the Onitire family in their claim of title to the land the plaintiff among others who had bought plots of land from Onitire family negotiated for and repurchased the land in dispute through the chambers of Akin Sikuade, Solicitors, sometime in 1978. At the material time and up till the time of her death in 1985, one Madam Serafena Daniel was the head of the Daniel family.

The learned judge rejected the defendant’s evidence that the land was virgin land in 1975. He found that the defendant took over the plaintiff’s land as at that time and the existing structure thereon which he started to build on despite warnings and entreaties to leave the plaintiff’s development alone. Defendant’s entry on the land was found to have taken place sometime in 1986. The learned judge further held in regard to the title relied on by the defendant that Omotayo Daniel who purportedly sold the land to him was at the material time not the head of the Daniel family and that even if he had been so found to be, the sale would still have been void ab initio because Omotayo Daniel did not purport to sell the land as representative of the Daniel family. On these findings it was manifest that the defendant was without title whatsoever.

Consequent upon these findings, the learned judge filed that the plaintiff being in exclusive possession of the land before the entry thereon by the defendant, was entitled to succeed in trespass. Reliance was placed, rightly in my view, on the case of Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119. He also held that the plaintiff having succeeded on the issue of trespass was entitled to an injunction against the defendant. As to the declaration of entitlement to issuance of a certificate of occupancy granted to the plaintiff by the judge, he reasoned thus:-

“….where a person is in possession of developed land over a long period of time and where the true owner of the land has granted a right to him to remain in possession the property will be sufficiently vested in him for the purpose of the Land Use Act.”

In the result, the learned judge gave the decision earlier stated which the defendant, dissatisfied with, has now appealed from.

On this appeal, the defendant had formulated seven issues for determination, but it is evident that the principal questions for determination are whether the learned trial judge had properly evaluated the evidence and had properly directed himself on the burden of proof.

In summary, the argument advanced by counsel for the defendant is that:

(1) Since the plaintiff had no document, such as purchase receipt or deed of conveyance from the Daniel family to back his claim the learned judge, notwithstanding the evidence of Mr. Sikuade in regard to the sale should not have held the plaintiff to be owner.

(2) There was no proof of purchase of land from the Onitire family.

(3) There was no evidence of who put the plaintiff in possession of the land.