Omolere Ikuomola V. Samota Oniwaya & Ors. (1990)

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KAWU, J.S.C. 

On the 7th day of May, 1990, I dismissed this appeal and reserved my reasons for the judgment till today, 13th July, 1990. I now proceed to give the reasons.

The appellant in this appeal was defendant in an action instituted by the respondents in the High Court of Lagos State, Ikeja Judicial Division, claiming as follows:-

1. “Declaration of title under native law and custom to all that piece or parcel of land situate and lying and being at Onilekere farm, Agege Ikeja Division Lagos State Nigeria.
2. Possession …

Pleadings were ordered, filed and delivered.

The case for the plaintiffs in the High Court, as revealed by the amended statement of claim and evidence led thereon, is that the land in dispute originally belonged to Afogunlowo who made an absolute grant of it to Olowe, the father of Moriamo Osunyemi, several years ago. After the death of Olowe, the land devolved on Moriamo Osunyemi, his daughter, according to Yoruba native law and custom. Moriamo was in possession of the land and farmed it, and this was long before one Abudu S. Jinadu moved to Oniwaya Road, Agege. When Jinadu came to Oniwaya Road, he rented the land in dispute from Moriamo Osunyemi by an agreement dated 26th April, 1946. He paid a total sum of 32,10 (5.00) rent for four years. That agreement is Exh. PB in this case.

It would appear that subsequently Jinadu arranged for a surveyor to survey the land but Moriamo Osunyemi prevented the surveyor from doing so. She then wrote a letter to the surveyor explaining why she had objected to the proposal to survey the land. That letter, dated 16th September, 1955. is Exh. PC in this case.

Three years after the death of Moriamo, it was discovered that Jinadu had sold the land in dispute. When he was challenged, he admitted selling the land and begged the plaintiffs to accept two other plots of land at Alimosho, Agege, in exchange for their mother’s land which he had sold. In addition to that he also gave the plaintiffs 200. However when the plaintiffs got to the place where the two plots offered by Jinadu were said to be situated, they were driven out of the land by a woman who said that Jinadu had no land in the area.

The plaintiffs reported back to Jinadu and subsequently instructed their solicitor to write to Jinadu demanding the return of their mother’s land (Exh. PE) They also returned the sum of 200 which Jinadu had given to them. They also wrote a letter to the defendant warning him that Jinadu, his vendor, had no land to convey to him as he had purported to have done. That letter is Exh.PF in this case. The defendant did not heed the warning.

The defendant’s case is that he bought the land in dispute from A.S. Jinadu who executed a deed of conveyance in his favour, a certified copy of which he tendered (Exh. DO). He traced Jinadu’s root of title to one Shitta Afogunlowo (2DW) who executed a deed of conveyance (Exh. DH) in his favour.

At the trial both parties gave evidence and called witnesses, in support of their respective claims. At the conclusion of the hearing the learned trial Judge, Adeoba, in his judgment made some findings of fact on contested issues, as follows:-

1. I find that Afogunlowo granted the land in dispute to Olowe, I believe the evidence of the 2nd plaintiff and his witnesses on this point.

I also believe the evidence of the 2nd plaintiff that after the death of Olowe, Moriamo Osunyomi went on the land, cultivated it and later let it out to one A.S. Jinadu. I do not believe the evidence of the 2nd defendant’s witness, Shitta Afogunlowo, who said that he did not know Moriamo Osunyomi on the land. There is overwhelming evidence on the record to show that Moriamo was on the land and exercised acts of ownership on it. I believe the 2nd plaintiffs evidence that his mother let out the land to A.S. Jinadu for 4 years.

I also believe the evidence of the 2nd plaintiff that he and others helped Moriamo to cultivate the land before it was let out to Jinadu. I believe the evidence of the 1st, 3rd and 4th P.Ws about the use to which Olowe and her daughter Moriamo Osunyomi put the land to. I do not believe the evidence of the 2nd D. W., a son of Afogunlowo who said that he has never heard of the name of Olowe or Moriamo Osunyomi, He is a liar and should not be believed on his oath. His evidence was only to protect himself after having jumped on the land to sell it to Jinadu.”

Notwithstanding these findings of fact made in plaintiffs favour, the learned trial Judge dismissed their claims in their entirety. He stated the reasons for his decision as follows:-

“It is clear from the pleadings and the evidence that the plaintiffs have aquiesced in the possession and sale by Jinadu to the defendant and have exchanged their mother’s land for two plots of land and 200. The plaintiffs cannot eat their cake and have it. If Jinadu reneged on his promise, the remedy of a declaration of title which is discretionary remedy is not the proper relief to seek.”