3PLR – AKERELE V. ATUNRASE
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]
AKERELE
V.
ATUNRASE
SUPREME COURT OF NIGERIA
18TH APRIL, 1969
SUIT NO. S.C. 190/67
3PLR/1969/19 (SC)
BEFORE THEIR LORDSHIPS:
COKER
LEWIS
FATAYI-WILLIAMS, JJ.S.C.
BETWEEN
- F ABIOLA AKERELE
AND
- A. J. ATUNRASE
- B. GBENLE
- A. F. TIJANI
- F S. BALOGUN
- J. A. BALOGUN
- N. O. ALOWONLE
- THE REGISTERED TRUSTEES OF THE HOPE RISING VOLUNTARY FUND SOCIETY
REPRESENTATION
Chief Williams (with him Coker) – for the Plaintiff/Appellant
Chief Coker – for the Defendants/Respondents
MAIN JUDGEMENT
FATAYI-WILLIAMS, AG. J.S.C.:-
The appellant as plaintiff had sued the first respondent as defendant for a declaration of title to a piece of land at Itire in Surulere on the mainland of Lagos, as well as for an injunction to restrain the first respondent from dealing with the land.
Pleadings were ordered and delivered by both parties. The plaintiff’s amended statement of claim filed on 30th November, 1964, avers that the land in dispute was sold to him by the Abayomi-Anjorin sub-branch of the Alago-Asalu family who were the original owners of the land. The statement of claim further avers that the defendant, who is not a member of the Abayomi-Anjorin family and who had not been so authorised by that family, had divided up the land into plots or lots and was selling these to various persons. During the exchange of pleadings, the 2nd, 3rd, 4th, 5th, 6th & 7th defendants had asked to be joined as defendants to the action and were so joined in spite of the opposition of the plaintiff. Together with the first defendant, they thereafter filed the amended statement of defence dated 3rd December, 1964. The amended statement of defence did not admit that the original owners of the land were the Alago-Asalu family but avers that the land was sold by one Aboki-Bada to one Disu Labulo (also known as Disu Orisan) on 11th September, 1909 and that the defendants had derived their title through the said Disu Orisan.
A large body of evidence was given at the trial and the learned trial judge, Ikpeazu, J., after hearing both sides, preferred the defendants’ case and entered judgment in their favour. In dismissing the plaintiff’s case with costs, he held, inter alia as follows:-
“I hold that the right of the Asalu family over the land in dispute had become extinguished by the long undisturbed possession of the Disu family and by the judgments which upheld this result. This was so even before the partition in 1951 and the result was that the plaintiff’s predecessors in title did not acquire any interest legal or equitable over the land in dispute when it was allotted to them. All the right they could have had became extinguished as aforesaid and they had nothing to transfer to the plaintiff therefore.
The plaintiff’s case must fail on the merits and is hereby dismissed with costs assessed at 80 guineas”.
Apart from the oral evidence given by both sides, a large number of documentary exhibits were also produced. The points canvassed at the hearing of the appeal before us range over a whole field of the evidence, both oral and documentary, given in the case and the law as applied to that evidence, Six Grounds of appeal were filed and argued but as the arguments over-lapped, it is better to deal with them together as argued by counsel for the appellant.
For the appellant, evidence was given that the land, some 2.587 acres in size, was sold to him by the Abayomi-Anjorin sub-branch of the Alago-Asalu family, the conveyance dated 27th July, 1957, (exh. ‘A’), having been executed for and on behalf of said Abayomi-Anjorin family by the appellants’ wife (plaintiff’s witness 2) and her aunt one Rabiatu Abayomi who was the head of the family at the material time. The appellant went into possession soon after the sale. The Alago-Asalu family, according to the traditional evidence adduced, comprises of two main branches, i.e. the Olufajo branch and the Iyajomu branch. Olufajo had three children namely, Isape, Aiyelegun and Aboki-Bada. Iyajomu had two children-Osuro and Oduntan. Oduntan was the father of Abayomi-Anjorin, the founder of the sub-branch through which the plaintiff claims title to the land.
Paragraph 8 of the amended statement of claim reads:-
“In an action instituted in the High Court of Lagos in Suit No. 163 of 1946 between the said Abayomi-Anjorin (as sole surviving child of Oduntan (deceased) a scion of the Iyajomu branch of the Asalu family as plaintiff against Lawal Osuro and Odewale Sanni Bada as defen-dants the family property of the Alago-Asalu family was ordered to be partitioned amongst the members of the said family. The land in dispute forms portion of the land `apportioned to the said Abayomi-Anjorin (vide plan of partition filed in Suit No. D80215-51)’.”
Plaintiff’s witness 2 (Virginia Iyabo Akerele), pursuant to the above averment, produced and tendered a certified true copy of the proceedings containing the partition order, made on 25th August, 1947, and this was admit-ted as exh. ‘E2’. After the partition the children of the Abayomi-Anjorin family successfully sued the children of one Koji-Labelu for declaration of title in respect of part of the land allotted to Abayomi-Anjorin under the partition order. The judgment in that case dated 7th August, 1956, was produced and admitted as exh. ‘F’ while the judgment of the court of appeal which confirmed the decision was admitted as exh. ‘1’. The appellant him-self also testified that after he had obtained the conveyance (exh. ‘A’) he went on the land and saw some persons erecting buildings on some portions of the land. On challenging them they told him that the portions were sold to them by one Koji-Labelu whose auctioneer the first respondent was.
For the respondents, the 1st respondent gave evidence as well as three other witnesses-a clerk of the High Court of Lagos (3rd defence witness) who produced some documentary exhibits, a surveyor (4th defence witness) who had prepared plans for the Disu Orisan family, and Alhaji Habib Disu who is a son of Disu Orisan (also known as Disu Labulo). The testimony of the last witness was that some time in 1909, one Aboki-Bada sold the land in dispute to Disu Orisan and executed in his favour a conveyance (exh. ‘D’) dated the 11th September, 1909. With respect to the exercise of rights of possession on the land by his family, Alhaji Habib Disu (2nd defence witness) testified as follows:-
“We went on the land to plant yams and corn and to collect palm fruits from the palm trees on the land. Nobody ever disturbed my father or ourselves in my father’s life time.”
Evidence was also led to show that some time in 1946, one O. S. Bada an off-spring of Aboki-Bada, interfered with the possession of the Disu Orisan family, that he was driven away from the land and was successfully sued for trespass to the land. The judgment in this case was admitted in evi-dence as exh. ‘P’. They also testified that the Disu Orisan family had successfully sued other persons to whom the Bada sub-branch had purported to sell portions of the land, one such judgment being that produced as exh. `Q’. There is also evidence that in 1959 the Disu Orisan family sold the land in dispute to the first respondent (Joseph Atunrase) who sold to the other respondents. A conveyance dated 13th July, 1959 (exh. `T’) was executed in Atunrase’s favour by the Disu Orisan family. Concerning his own possession of the land, the first respondent testified as follows:-
“Apart from the houses built in 1954 by Sangowanwa, Onasanya and the 7th defendant, the rest of the land in dispute was bush and remained so until the purchasers built three to four years ago. After I had bought from Disu Labulo, those who bought from Labulo before his deed of gift was set aside took conveyance from me. These includ-ed Sangowanwa, Onasanya, and the 7th defendant. I executed a conveyance for Ashaye. I can’t recollect date of the conveyance, and of other conveyances.”
To our mind, some facts stand out so pre-eminently in this case that they may safely be regarded as the spring-board from which the conflict can be resolved. Firstly, while the appellant claims that the land belonged originally to the Alago-Asalu family the respondents maintain that it belonged to Aboki-Bada personally. Secondly, the appellant’s conveyance (exh. ‘A’) is dated the 27th July, 1957, while the first respondent’s conveyance (exh. ‘T’), is dated 13th July, 1959. Thirdly, both parties claim to be in physical possession of the land or of a substantial portion of it until the institution of the present proceedings.
With regards to the first fact, it is manifest that appellant relies on the original ownership of the land by the Alago-Asalu family. This is clearly averred in para. 2 of his amended statement of claim. The respondents put the appellant to proof of this in paragraph 2 of the amended statement of defence. As against the appellant’s averment, the defence set up a conveyance by Aboki-Bada to Disu Orisan in 1909. In the course of his judgment, the learned trial judge observed on this point as follows:-
“I am satisfied that the land in dispute formed part of a large piece of land which formerly belonged to the Asalu-Alago family”.
That finding was not challenged before us and the arguments were directed to showing which of the parties legally took over the interests of that family. For the appellant, Chief Williams submitted that the appellant’s title as traceable to the Alago-Asalu family is good and that the conveyance to Disu Orisan (exh. ‘D’) relied upon by the first respondent, is void as against the Alago-Asalu family. Learned counsel for the respondents, on the other hand, submitted that the conveyance (exh. ‘D’) is at its worst only voidable as against the family and that until it is set aside the court must regard it as valid.
In Mosalewa Thomas v. Preston Holder (1946) 12 WA.C.A. 78, the West African Court of Appeal dealt with the onus of proof in a case where the court had come to the conclusion that one of the parties had derived title from a person admitted by both sides as the owner. The following statement of law at p. 80 of the said report is in the context relevant:-
“Where the plaintiff is claiming a declaration of ownership based upon long possession then `it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owners’.”
We are in no doubt that the principle of this decision must apply in this case and that the appellant having traced his title direct to persons found by the judge to be the original owners of the land, the respondents must prove that the appellant was not entitled to the judgment of the court. In this connection, reference may be made to the following recital of the vendor’s title in the conveyance to Disu Orisan (exh. ‘D’):-
“Whereas the Vendor is seised in fee simple in possession free from incumbrances of the Hereditaments hereinafter expressed to be hereby granted and has agreed with the Purchaser for the absolute sale to him thereof at the price of FIFTY POUNDS….”.
It is also pertinent, at this stage, to refer to the observation of the learned judge on the effect of the conveyance (exh. ‘D’) which is as follows:-
“In the case under consideration Aboki Bada though a substantial member of the family purported to “sell the family land to Disu Labulo as beneficial owner and in the view I expressed above I will hold that the sale was void ab initio”.
Learned counsel for the respondents attacked this statement of the law and referred us to the case of Akano & anor. v. Alhaji Y. Ajuwon [1967] N. M. L. R. 7 where this Court, at pages 9 & 10, made the following observation:-
“Plainly, in common parlance people speak of the land of X, the head of the family; and if the members of the family themselves do so, they cannot complain if strangers do. From a lawyer’s point of view it may not be precise; but a lawyer, too, would find it hard to discover an English term by which to describe the position of the family head. In strictness he is not the owner; some think it is unwise to call him the trustee and import English ideas of trusts; perhaps manager is nearest but this term does not altogether fit either, for it is conceded that if the family head sells family land without having obtained the consent of the other members whom he ought to consult the sale is not void but voidable at the instance of the others”.
He then submitted that the judge should have held that the sale by exhibit ‘D’ was voidable instead of void. As against this submission, learned counsel for the appellant referred us to two cases-Cole v. Folami (1956) 1 F. S. C. 66 and Ekpendu v. Erika etc (1959) 4 E S. C. 79. The following observations of the Federal Supreme Court at p. 81 of the report of the latter case are pertinent:
“Applying that principle to this appeal, and agreeing, as I do with the learned trial judge that the land in dispute is family land, and not the absolute property of the 3rd appellant, it follows that the lease by him to the 1st and 2nd appellants was void ab initio, it being beyond doubt that the respondent, the head of the family, never agreed to, and, in fact, consistently opposed the grant of the lease”.
In the instant case, it is clear that by the conveyance exh. ‘D’, the vendor therein was purporting to convey his own land, or rather his own private property of which he was “seised in fee simple in possession.” If, as indeed it did, it turns out that the land actually belongs to the Alago-Asalu family, surely on the principle of nemo dat quod non habet, the sale and conveyance must be void ab initio. In fact, as long ago as 1944, Sir Donald Kingdon, C. J., delivering the judgment of the West African Court of Appeal in Belo Adedubu & anor. v. Makanjuola (1944) 10 WA.C.A. 32 observed at p. 36 as follows:
“We must further point out that the conveyance in this case does not in its terms even profess to convey Bashorun Oluyole family land but only certain hereditaments of which the vendors, a number of individuals, not in any representative capacity, were `seised in fee simple’. In this respect, the conveyance differs from the sale agreement on which it was supposed to follow. The conveyance was ineffectual to convey to the defendant the legal estate in the family land and the question which still has to be decided in this suit is whether the agreement of sale of the family land had the consent of the family and so gave to the defendant an equitable right of occupation which would prevent the court granting the injunction sought or awarding damages for trespass.”
There can be no argument that the question to be decided in a case such as this is whether the sale was of family land. In the case of Akano v. Ajuwon supra, relied on by counsel for the respondents, the court took the view that what was in fact sold was family land and the respondents throughout claimed to have purchased family land. In the present case, the respondents, not only denied that the land belonged to the Alago-Asalu family but also averred and testified that it belonged to Aboki-Bada. The distinction is therefore obvious. Evidence of the reaction of the family to the purported sale after they knew or ought to have known it, may throw some light upon the issue. In the case in hand, the persistent incursions on the land by the family in an endeavour either to deal with the land as their own or to dispose of portions of it must be taken as pointing to the fact that the family never approved of the sale of their land. Moreover, there is also no evidence as to how Aboki-Bada acquired a fee simple estate in this land seeing that the title of the respondents was put in issue by the finding of the learned trial judge that the land was originally Alago-Asalu family property. For all these reasons, we have come to the conclusion that the learned trial judge was right in holding, as he did, that the conveyance exh. ‘D’ was void as against the Alago-Asalu family, the original owners of the land.
Dealing with another point with respect to the respondents’ title, learned counsel for the respondents submitted that the judgment in exh. ‘Q’ (i.e. Suit No. 333/54 between Saka Disu (on behalf of Disu Orisan family) and J. A. Adeniyi) has determined the title of the Alago-Asalu family in respect of this land in favour of the family of Disu Orisan. In that action the Disu Orisan family had successfully sued Adeniyi, who had purported to buy a portion of their land from the Alago-Asalu family, for damages for trespass. Learned counsel then argued that on the authority of Marbell v. Akwei (1952) 14 W.A.C.A. 143, the judgment in exhibit ‘Q’ clearly estops the Alago-Asalu family. He also cited the decision in Abogunde v. Lanlokun (1958) WR.N.L.R. 69 (a decision of the Federal Supreme Court) in support of the same proposition. If the facts of this case fall within the principle of Abogunde’s case we do not doubt that the decision must be followed in this case. We are clearly of the view, however, that the facts of this case do not fall within that principle. It is then necessary to elicit from the judgment in Marbell’s case the principle which it purports to lay down for insofar as it has been suggested that the judgment tends to question the correctness of the decision of Romer, J., in the case of Mercantile Investment and General Trust Co. v. River Plate Trust. Loan and Agency Co. [1894] 1 Ch.D 578 at p. 595, we are unable to agree with it though the West African Court of Appeal specifically said at page 135 of the judgment that it had no application to the case before it. Be that as it may, it goes beyond argument that the decision in Marbell’s case must be confined to the facts of that case and must be limited in its scope of application to persons who could have joined in the action which is claimed as an estoppel. In the present case, nowhere is exh. ‘Q’ pleaded as an estoppel as it should have been if the respondents intended to rely on it as such. It is significant that even the learned trial judge in this case did not treat exh. ‘Q’ (and also the judgment on the appeal from it, exh. ‘QI’) as such.
Another significant fact in this case, as we have said earlier, is that concerning the dates of the formal conveyance on which each party relied. Exh. ‘A’ relied on by the appellant is dated 27th July, 1957, and exh. ‘T’ relied on by the respondents is dated 13th July, 1959. Undoubtedly, at the time the 1st respondent purported to buy the land in dispute, if he had made any searches at the Land Registry he would have discovered that a conveyance of the land had been registered in favour of the appellant; and although registration may not be notice to him of the appellant’s title, if it turns out that the appellant with his previously registered conveyance is in possession the first respondent cannot invoke any equities in his own favour. As we have held that the conveyance exh. ‘D’ is void as against the Alago-Asalu family it follows that the appellant’s conveyance (exh. ‘A’) was the only valid conveyance registered in respect of this land at the time exh. ‘T’ was executed in favour of the 1st respondent.
We will now proceed to the issue of possession of the land in dispute. The learned trial judge rejected the evidence of possession given for the appellant and observed as follows:-
“I am not enamoured of the evidence of possession adduced in favour of the Asalu-Alago family. I do not consider Yaya Oluwa a truthful witness and I do not believe that the Asalu-Alago family farmed on the land in dispute after 1909 and reaped economic fruits thereon.”
As against this finding the judge accepted the evidence of possession as given for the defence and remarked in his judgment as follows:
“I accept the evidence of Alhaji Disu that his father took possession of the land after the purported sale, cultivated it and reaped the palm fruits from the palm trees thereon with no disturbance from anyone whatever and continued to do so over a period of years. When after 44 years the Asalu family challenged them for the first time they success-fully sued them and recovered possession of the land to which exh. `D’ related and of which the land in dispute forms a part. The same will be said of exhibit `Q’ and `Q1′ in which the Disu family established their possessory title to the land as against the Asalu-Alago family”.
Pursuant to these remarks, he then proceeded to find as follows:-
“I hold that the right of the Asalu family over the land in dispute had become extinguished by the long undisturbed possession of the Disu family and “by the judgments which upheld this result. This was so even before the partition in 1951 and the result was that the plaintiffs’ predecessors in title did not acquire any interest legal or equitable over the land in dispute when it was allotted to them. All the right they could have had became extinguished as aforesaid and they had nothing to transfer to the plaintiff therefore.
The plaintiff’s case must fail in the merits and is hereby dismissed with costs assessed at 80 guineas”.
Learned counsel for the respondents has submitted that these findings of the learned trial judge are fully justified by the evidence before him while counsel for the appellant has asked us to reject the findings because they demonstrate a complete misconception of the case of each party. Counsel for the appellant referred us to the plan of the land owned by the Alago-Asalu family (i.e. exh. ‘S1’ comprising about 300 acres of land) and sub-mitted that any acts of possession claimed by or on behalf of the Disu family and the respondents must have occurred by way of trespass on the small eastern fringes of land already disposed of by the family leaving entirely untouched a large expanse of land of some 200 acres and more to the west of lands thus disposed of. The possession envisaged in this context must be such as would oust the title of the original owners of the land and also such as, in the opinion of the court, is so obvious that the owners must be taken as having accepted the claims of the possessor: (See Williams Bros. Direct Supply Ltd v. Raftery [195811 Q. B. 159). If such possession is found in the respondents in this case or in their predecessors in title, the court must act on the law as settled that such possession would not be disturbed at the instance even of an original owner. Of course, the burden of proving such possession is on the person who asserts it and it is therefore upon the respondents in this case, especially when, as it happens from our earlier findings, their claim must rest only on that issue.
We have already set out the evidence of the first respondent as to his exercise of possession. We observe that none of the other respondents testified at the trial. The only other witness who testified as to possession was Alhaji Habib Disu and apart from putting in evidence three judgments which had been obtained by his family, i.e. exhibits ‘P’, ‘Q’ and ‘X’, he said:
“My father had a piece of land at Surulere. He used to take me there when he was alive. He bought it in 1909 from Aboki Bada the head of the Asalu-Alago family…. We went on the land to plant yams and corn and to collect palm fruits from the palm trees on the land. Nobody ever disturbed my father or ourselves in my father’s lifetime”.
On the face of it, exhibit ‘X’ (the proceedings of a case commenced in 1959) is irrelevant on this point and certainly does not bind the appellant as it occurred after he had acquired his title. As for the judgment exh. `Q’, we have already expressed the view that, for the reasons stated earlier, that judgment could not be relied upon as an estoppel against the Alago-Asalu family. Exhibit `P’ is a judgment delivered in January, 1948 in a case in which the Disu Labulo family had successfully sued O. S. Bada for trespass on the land. Learned counsel for the respondents has asked us to hold that as Bada had put up in defence in that action the title of the family, the judgment must bind the whole Alago-Asalu family. Learned counsel for the appellant, on the other hand, submitted that exhibit ‘P’ was a personal action for trespass and no more. The judgment in the case is short and is as follows:-
“As per claim in favour of the plaintiffs: they and their father have not been disturbed in their possession until recently by the defendant and there is no evidence that either they were sued by Abayomi `who sued others, or that they concealed their claim to this land’.
The proceedings in exh. ‘P’ took place between May, 1947 and January, 1948. It must be borne in mind that Aboki-Bada, the father of O. S. Bada (the defendant in exh. ‘P’) was one of the three children of Olufajo, who himself was one of the two children of Alago-Asalu. The other child of Alago-Asalu was Iyajomu who had two children, Osuro and Oduntan. The appellant claims through the children of Oduntan. In June, 1951, (see exh. ‘El’) the Oduntan line of the family (of which the Abayomi-Anjorin is a sub-branch) had been compelled to institute legal proceedings against all the other branches or sub-branches of the family in order to establish their entitlement to the family lands of Alago-Asalu. What counsel for the respondents has asked us to do is to hold that in exh. ‘P’, Bada was defending the action also for the Abayomi-Anjorin sub-branch of the family when it is crystal clear from exh. ‘EI’ that up to 1951 the Abayomi-Anjorin sub-branch were not recognised as a branch of the Algo-Asalu family. We can-not accept that contention when apart from anything else it is contrary to common sense. We must therefore hold that O. S. Bada contested the claim in exh. ‘P’ in his own personal capacity.
Going back to the issue of possession, the appellant gave evidence of his going into possession of the land after his purchase. According to the testimony of p. w. 2 (one of the members of the Abayomi-Anjorin family who executed the conveyance exh. ‘A’ in favour of the appellant), the family also exercised their possessory rights over the land. As was aptly pointed out by her:-
“My grandfather was using the land shown in exhibit ‘G’. He was planting crops and economic trees. He lived in the farm all these time. It is my evidence that my grandfather was using the entire family land before the partition.”
In addition plaintiff’s witness 2 referred to a number of cases on the land by her family, e.g.
Exhibit ‘H’ in 1912, Exhibit ‘J’ in 1912, Exhibit ‘L’ in 1919 Exhibit ‘E2’ in 1947, and Exhibit ‘E’ and ‘El’ in 1951-53
She also referred to the decisions in exhibits ‘F, ‘Fl’ (1956 and 1957) and ‘G’ (1955) by which suing on behalf of the Abayomi-Anjorin family, she successfully sued the children of one Koji-Labelu and ejected them from the land; there is also exh. ‘N’ (1964) whereby she got judgment against one Obidiah Ashaye and executed a writ of ejectment against him. The judgments in all these cases clearly show that at the times of these judgments the Alago-Asalu family were in possession of their lands and this clearly after 1909 when it was alleged that Disu Orisan had purchased. It is, we think, pertinent to refer to the partition proceedings, exh. ‘E2’ (1947) in which Johnston. J., observed in his judgment as follows:-
“It is manifest from the evidence elicited in cross-examination of the 2nd defendant and his witness that a partition of the lands of Obele-Odan and Obele-Igbodo between the plaintiff on the one hand as the `Oduntan Scion’ and the first defendant as representing the `Osuro Scion’ is a reasonable step with a view to the ending or of a limit of trouble over rent collecting and care taking …. If partition is not granted now there will be numerous suit with trouble and expense for a decade to come between the plaintiff’s descendants, the Oduntan, and the defendants, the Osuro’s.”
If, as it is contended for the respondents, the learned judge in the instant case was right to hold that the Alago-Asalu family had not been in possession of the land since 1909, it must follow, in consequence, that all the decisions of the court from 1912 to 1953, as shown in the various exhibits referred to, were wrong even though they still subsist as judgments of competent courts. It must also follow that throughout the many years covered by those cases the family was engaged in litigation over lands which they did not possess. We are certainly not prepared to accept such a situation. We must hold, therefore, that on the balance of the evidence before the court, the first respondent and his predecessors in title have failed to establish such ‘possession as should oust the title of the original owner. In our view, the occurrence of several legal proceedings since 1912 must indicate that if the family of Disu Orisan was ever in possession, that possession was not undisturbed, and complete unacceptance of the purported sale to Disu Orisan (which we have held was void and not just voidable) is singular evidence of the maintenance of the rights of the Alago-Asalu family over the land. That being the case, it seems to us that the learned trial judge was clearly in error when he held that the Disu Orisan family were in undisturbed possession of the land since the void sale of 1909.
For the above reasons, we have come to the conclusion that this appeal must succeed on the grounds of appeal argued. We accordingly order that:-
(a) the appeal be allowed and the judgment of Ikpeazu, J., in Suit No. LD/229/61, including the order as to costs, be set aside;
(b) the appellant be declared the owner of all that piece of land situate at Itire, Surulere, Lagos, and verged red on plan No. K 2333 of 16th February, 1965 (exh. ‘R’);
(c) the first resondent (A. J. Atunrase) and/or his servants or agents be restrained from dealing with the said land; and
(d) the respondents pay the costs of this appeal assessed in this Court at 92 guineas and in the court below at 88 guineas.
Appeal allowed: Judgment of High Court set aside.
