3PLR – ALHAJI FASASI ADESHOYE V O. SHIWONIKU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097] 

ALHAJI FASASI ADESHOYE

V

O. SHIWONIKU

LAGOS, 22ND MAY, 1952

3PLR/1952/2 (WACA)

CITATIONS

14 W.A.C.A. 86.

BEFORE THEIR LORDSHIPS:

FOSTER-SUTTON, P.

DE COMARMOND, AG. C.J. (NIGERIA)

AND COUSSEY, J.A.

REPRESENTATION

1. I. C. Taylor, with him M. Adekunle, for Appellant.
2. R. A. Williams for Respondent.

MAIN ISSUES

LAND LAW:- Claim for damages for trespass to land – Where alleged trespasser is in possession – Condition precedent

TORT AND PERSONAL INJURY: – Trespass on land – Person in possession -Trespasser with no title – How treated

MAIN JUDGMENT

The following judgment was delivered:

Foster-Sutton, P. The plaintiff-respondent claimed damages for trespass which he alleged had been Committed by the defendant-appellant to land situate at Kayaoja Village, Lagos, belonging to the respondent.

The appellant admitted entering upon the land in question, but claimed to have done so as of right, being the purchaser in fee simple, as evidenced by a Deed of Conveyance dated 14th. January, 1950.

The land in dispute is part of a larger area of land which was originally purchased by one Sulu Kayaoja, the Deed of Conveyance being dated 16th November, 1914. He died intestate some years ago leaving six children and grandchildren. The fact that they jointly inherited the land is not controverted.

In the year 1946 three of the children appointed an agent authorising him to sell some of the land. Pursuant to that authority the agent, on the 30th September, 1946, sold two plots of the land described as plots No. 6 and 7 to a Madam Oke Ayinke. She in turn sold plot No. 6 to the respondent on the 16th December, 1946, and it is that portion of the land which is the subject of dispute in this, case.

In neither case was a conveyance executed and it is admitted that as no partition of the land had taken place the sale was defective because all of the persons entitled did not join in authorising the agent to sell.

The learned trial judge found as a fact that the respondent entered into possession of the land at the time he purchased it in December, 1946.

The appellant’s case is that he purchased an area of the late Salu Kayaoja’s land, including the plot alleged to have been purchased by the respondent, from two of Kayaoja’s children and he tendered in evidence a registered Deed of Conveyance, dated 14th January, 1950, by which the two children concerned purported to convey the land to the appellant. They claimed to be entitled to execute the conveyance by virtue of a Deed of Partition under which they alleged the land was allocated to them. Examination of the document, however, disclosed that only four of the children had participated in the execution of the Deed and no evidence was forthcoming to show that the remaining two children interested in the land were in any sense parties to it. The evidence is to the contrary. Indeed, Mr. Moore, the solicitor responsible for the preparation of the Deed, gave evidence that only four persons instructed him and that the names of the other two were not mentioned to him.

It follows, therefore, that the appellant’s title to the land in dispute is also defective, and his Counsel on this appeal has not argued to the contrary. He has, however, submitted that the appellant’s conveyance is only voidable, that he is in law the owner in fee simple of the land until, what appellant’s Counsel has referred to as the Deed of Partition, has been set aside, and that it can only be set aside at the instance of one or both of the children who did not participate in its execution. He urged that the legal estate was in the appellant and that the learned trial judge, therefore, erred in holding that the respondent’s possession of the land entitled him to sustain an action for trespass against the appellant.

The appellant sought to defeat the respondent’s claim by setting up the Conveyance dated 14th January, 1950, under which he claimed to be the owner in fee simple of the land in dispute. The validity of that conveyance was put in issue by the respondent, and, in my opinion, the learned trial judge was bound to determine the issue so raised. Once it became clear that the grantors had purported, as they did, to convey a title which they did not possess, the respondent being in possession of the land could successfully maintain an action for trespass against the appellant.

It follows that in my view this appeal should be dismissed with costs.

DE COMARMOND, AG. C.J. I concur.

COUSSEY, J.A. I concur.

Appeal dismissed.