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17TH MARCH, 1967.

3PLR/ 74/1964.








  1. A. S. Sowemimo – for the appellants

Respondent in person



ADMINISTRATIVE LAW – Actions – Declaratory judgment – Discretionary – Discretion to be exercised judicially.

LAND LAW – Land held under Customary tenure – Conveyances purporting to transfer fee simple thereof



AJEGBO, J.S.C. (Delivering the Judgment of the Court):

The plaintiff sued the defendant in the High Court of Western Nigeria, sitting at Ibadan for a declaration of title to a piece of land situate at Molete, Ibadan, £200 damages for trespass and injunction. He succeeded in the claim for damages for trespass for which the judge awarded him 1:50, and failed in the other two claims for declaration of title and injunction. The plaintiff has appealed against the judgment and the defendant has also cross-appealed.

It is the plaintiff’s case that he purchased a piece of land from one B.A. Adeoye, a member of Iba Oluyole family of Ibadan, in 1954 and that Adeoye gave him a deed of conveyance, Exhibit 1. In order to remove any doubt about his title that might arise from a sale of family land by a member of the family, even If with the support of a section of the family, the plaintiff decided to buy the land all over again from the other section of the Iba Oluyole family. Another deed of conveyance from that other section was accordingly executed in his favour and this is Exhibit 2. The plaintiff said he fenced the land in 1954/1965 and that towards the end of 1955 he saw a foundation for a building being erected near the land. He did nothing about this because the building operation was not on his land, but when later he noticed that his own portion of the land was being fenced round by the defendant, he approached the defendant and also got his solicitor to write asking him to desist from his acts of trespass. The defendant stopped for a while and resumed activity. He saw the defendant digging the land and stopped him and as a result the defend-ant took out a criminal summons against him, he was acquitted and discharged. Not heeding the Court’s order binding the two of them over to keep the peace, the defendant started to build his house. It was when he saw him doing this that he commenced the present action.

Counsel for the defendant closed his case at the end of the plaintiff’s case and the defendant did not, therefore, give evidence at the hearing; but the following averments are contained in his Statement of Defence:-

“5.     With regards to Paragraph 7 the Defendant says that in 1953 he made his building foundation on the land with Stones and since then started the building and had it completed in 1955.

  1. The area built upon in 1955 was half of that the defendant purchased in 1953 from Iba Oluyole family of Ibadan as edged Pink on the attached Plan.
  2. In September, 1958, the Plaintiff for the first time came on the said land and damaged the Defendant’s fence and a report of it was lodged with the Police at Iddo Gate Ibadan, where he was warned.
  3. In March, 1959, the Defendant started constructing the building foundation on the remaining half of his land and then again the plaintiff came to disturb the constructional work together with about Eight (8) hired hooligans.
  4. The incident above was reported to the Police who again warned the Plain-tiff and advised him to take a civil action H he thought he had a right.
  5. In March 1959, the Defendant instituted an action against the Plaintiff in the Ibadan No.1 Customary Court for Trespass and Injunction and there the matter is still pending.”

In his evidence, B.A. Adeoye, 3rd witness for the plaintiff, said that his family, Iba Oluyole, sold a piece of land to the defendant sometime In 1953 and that the defendant entered into an agreement with the family. He said that at the time he sold land to the plaintiff he Informed the plaintiff that the family had granted a piece of land measuring 100ft. by 175ft. to the defendant. According to the witness the land was lying between the land of Dr. Agbaje and that of the plaintiff. The defendant had built on half of the area and the other half remained undeveloped. There is no dispute about the area on which the defendant had already built; the dispute Is about the other half of 50 ft. As was stated earlier, the defendant did not give evidence. His plans and the agreement which Adeoye said was entered into between the defendant and [be Oluyole family were not before the court. Oral evidence of the terms of that agreement were wrongly, in our view, allowed to be given in evidence, but nonetheless, the defendant did not satisfy the limed trial judge that the 50 it frontage, the land in dispute, formed portion of his land.

In his judgment the learned trial judge made a number of findings. He said:-

“On the evidence before me, I am satisfied that the Plaintiff did have title to the land in dispute and that he entered into possession and did have actual possession of the particular plot in dispute before the defendant entered as he claims, I accept the following facts.

  1. The land Including the land in dispute belonged to the Oluyole family.
  2. By the conveyance, Exhibit 1, Adeoye a member of the Iba Oluyole family, on behalf of this family conveyed the land in fee simple to the Plaintiff.
  3. The plaintiff took possession and remained in possession of the land including the land in dispute until the defendant entered Into this land. On this Issue, I accept the plaintiffs case that:-

(a)     he took and had possession of all the land covered by the Conveyance;

(b)     he had a survey of this land done in 1954 as shown by plan OG 419/1954 (attached to the Conveyance Exhibit 1);

(c)     he also had this land conveyed to him by other members of the Iba Oluyole family in 1957 as per the conveyance dated 2nd July, 1958, Exhibit 2. This conveyance also had another plan (No.LL3457 prepared and attached to this conveyance dated 3rd September, 1957).

(d)     I accept the plaintiff’s claim that he had a fence by way of sticks planted around this land.

(e)     I accept the uncontradicted evidence of plaintiff’s 4th witness, Dapo Akanji that he was farming on the land with the plaintiff’s consent until someone two to three years ago fenced around the land he farmed on and uprooted sticks he had planted at Plaintiff’s request”

He further stated:

“I have accepted the plaintiff’s case that he was in actual possession of the land in dispute. The plaintiff has further proved his title to the land by conveyances Exhibit 1 and Exhibit 2.”

The defendant filed two grounds of appeal in his cross-appeal complaining about the award of £50 damages to the plaintiff for trespass and the unreasonableness of the judgment. He argued his appeal himself, without the aid of counsel, and was not of much help to the Court.

Arguing the appeal Mr. Sowemimo, counsel for the plaintiff, submitted that the learned judge, having made the findings of fact which we have set out should have granted the plaintiff the declaration of title and injunction he sought in addition to the award of damages for trespass. We think Mr. Sowemimo is right. Thus, the grant of declaration, as the learned judge rightly pointed out is discretionary but, with respect to him, that discretion should be exercised judicially. We do not think that the discretion was properly exercised in this instance. Mr. Sowemimo further submitted that as his client bases his title on the two conveyances, Exhibit 1 and Exhibit 2, and as conveyances are unknown to native law and custom the Court should grant to the Plaintiff a declaration in fee simple. He relied on his averment in paragraph 3 of his Statement of Claim coupled with the terms of the grant in fee simple in his two conveyances. Paragraph 3 of Statement of Claim reads:-

“3.     The Plaintiff became a beneficial owner for an estate under native Law and Custom or in the alternative for an estate in fee of a large tract of land around Molete of which the land in dispute forms part.”

Again, we agree with Mr. Sowemimo. In Kabiawu v. Lawal (unreported) SC.74/1964, judgment of this court delivered on 12th November, 1965, the court observed:

‘there is no dispute that an owner of land under Native Law and Custom can transfer his absolute interest and describe the entirety of such interests as conveyed by him as an estate In fee simple.”

The appeal of the plaintiff is allowed and the cross-appeal by the defendant is dismissed. The judgment of Duffus J. In 1/129/61 is to the extent that it dismissed the claim for a declaration of title and injunction set aside. There will be judgment for the plaintiff for a declaration of title in fee simple for that piece of land situate at Molete, Ibadan, more particularly described and delineated on Plan LL1970 dated 4th March, 1961, and an injunction to restrain the defendant from entering on the land.

Appeal allowed. Declaration and injunction granted.


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