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FSC 116/1956

3PLR/1956/37 (SC)



OLUMUYIWA JIBOWU, AG. F.C.J. (Presided and Read the Lead Judgment)









  1. Williams -for Appellant.

J.E.C. David (with him O. Moore) -for Respondents


LAND LAW – Long possession – Effect of abandonment thereof.

LAND LAW – Ownership of land – Adverse long possession of – Applicable principles.


JIBOWU, AG. F.C.J. (Delivering the Lead Judgment):

This is an ap­peal by the 2nd defendant against the judgment of Abbott, J., dated the 26th September, 1955, whereby the 2nd defendant was ordered to give up posses­sion of 8, Kano Street, Ebute Metta, to the plaintiffs.

The facts of the case as disclosed by the Record of Appeal are that the Oloto Chieftaincy family sold and conveyed the land in dispute in January 1951, to one Amos Fadoju. Amos Fadoju could not be put in possession as the 2nd defendant was in possession by his tenants, so he sold and conveyed the property in December 1951, to Durojaiye Akinduro, who also sold and conveyed the property in March 1952, to the plaintiffs.

It is to be noted that the man, J. K. Samuel, who claimed to be husband and agent of Durojaiye Akinduro, broke down the sheds of the 2nd defen­dant’s tenants on the land in an attempt to take possession of the land, and he was prosecuted and fined £12 in Ebute Metta Magistrate’s Court on the 16th September, 1952. The plaintiffs also could not get possession of the land in dispute from the 2nd defendants’ tenants and so took this action for recovery of possession.

It is, therefore, well established that the 2nd defendant was in posses­sion up to the time this action was taken, a fact admitted by the 1st witness for the plaintiffs, who stated:

“I bought the land on behalf of plaintiffs. We could not get into possession of the land.”

This evidence confirms paragraph 9 of the plaintiffs’ statement of claim, which reads:

“The defendants have and are in wrongful occupation of the land.”

Paragraph 8 of the 2nd defendant’s statement of defence reads:

“That ever since 1898 the said Akinwunmi and his children have been in undisturbed possession and they have been collecting rents from tenants thereon.”

The learned trial Judge therefore misdirected himself when he stated in his judgment:

“Mr Williams, for the defendants, asked me to hold that the evi­dence shows long possession in the 2nd defendant, sufficient to entitle him to be regarded as owner of the land in dispute.

The defence is not properly pleaded and, even if it were, there is no evi­dence of legal possession after 1951, so that there is a break in the statutory period which must run continuously up to the time when proceedings are commenced. The writ in this action was issued in 1954.”

The first ground of appeal is therefore, well founded.

I shall now consider what is the nature of the long possession the 2nd de­fendant now appellant, claimed. He based his claim on a deed of con­veyance, dated the 5th February, 1887, from one Alfred Cope Campbell to Nathaniel Thomas Shepherd in respect of a piece of land at Ebute Metta, 300′ x 300′ in size, bounded on the north by Public Street, on the south by Church Street, on the east by another Public Street, and on the west by Mar­ket Street. “This piece of land was said to have been sold by the Court in 1892 for the debt of Nathaniel Thomas Shepherd and bought by the 2nd de­fendant’s father, Akinwunmi. The land in dispute was said to be a portion of this land. Unfortunately, the land contained in the deed of conveyance, Exhibit “F,” cannot now be identified. It is quite clear from the plan on the deed of conveyance that the streets on the north and east of the land had not then been named. Church Street, as now known, is shown on map Exhibit “D” as being a street around St. Jude’s Church grounds, Ebute Metta, which is far away from Kano Street which is north of the land in dispute. The block in which the land in dispute is situated is bounded by Kano Street on the north, Denton Street on the West, Coates Street on the south and Griffith Street on the east. Market Street, as now known, is very far away from Kano Street. This map, Exhibit “E,” was made in 1945 from a survey of 1928.


From Exhibit “D” and “G” it is clear that great changes had taken place in Ebute Metta and in the names of Streets. In Exhibit “G,” for instance, the C.M.S. Church, known as St. Jude’s Church, was bounded on one side by Griffith Street and on the opposite side by Strachan Street; on the other two sides it was bounded by land allotted to Egba refugees. Then there was no Church Street around St. Jude’s Church. Later on the open land around the Church was reduced in size and buildings grew around the land left in the middle for the Church. The strip of land around the Church grounds was then called Church Street, as shown on the map, Exhibit “D.” It is incon­ceivable that the surveyor who prepared the plan on Exhibit “F” in 1887 just imagined the names of the streets he put on the plan; those streets, in my view, must have then existed, and the two sides where the streets had not been named were only shown as Public Streets. It is unfortunate that old sur­veyors and old men who would have known the old names of the street were not available, so on the evidence before the learned Judge he could not have come to any other conclusion than that there was proof that the land in dis­pute is a portion of the land described in Exhibit “F.”


However, the 2nd defendant had, by his own evidence and that of his witnesses, proved that his father was in possession of the land in dispute in 1892 and that his own elder sister, Iya Elepo, took charge of the land before she died and that he took it over on her death. This evidence was not con­tradicted, and there was further uncontradicted evidence that for over 21 years the ‘Akinwunmi Family had been collecting rents’ on the land until their possession was disturbed by J.K. Samuel in 1951.

No member of the Oloto Chieftaincy Family gave evidence and J.K. Samuel, who was the attorney of the Oloto Family at the time of the sale of the land, was the only person on the plaintiffs side who gave evidence to es­tablish the Oloto Family’s claim to ownership of the land.


The learned Judge, however, did not believe his evidence and said so in the following words;


“P. W. 3. 1 can dispose of briefly. I came to the conclusion that he would say almost anything he was asked or persuaded by some means to say and I disregard his evidence completely.”


If the evidence of this witness is eliminated, as the learned trial Judge said he did, we have only the conveyance, Exhibit “B,” purporting to have been executed by the Oloto Family to Amos Fadoju, about which no other witness had given evidence. The conveyance does not give the history of the land up to the time of its purported execution. There is not even evidence that the deed was, in fact, executed by members of the Oloto Family whose names appear on the deed. No member of the Oloto Family came forward to deny or contradict the evidence of the second defendant and his witnesses with regard to their occupation of the land from 1892.


The learned Judge appears to have been misled into coming to a wrong conclusion by the evidence of the second defendant’s witness, Mustafa Dabiri, who said that the land in dispute was thick bush when he first got on it about 21 years ago. From this piece of evidence the learned Judge con­cluded that rents could not have been collected on the land by second defen­dant’s father in 1894 and by his children before 21 years ago. This argument, in my view, is fallacious. There is nothing improbable in the second defen­dant’s story that his father occupied and used the land and that rents had been collected on it before 21 years ago. One only has to consider not only the possibility but also the probability that vacant land on which there is no building might be covered by bush in a few year’s time if it is not tended by the owner or anybody else. One should also consider that sanitary and health conditions were not the same many years ago as they are now. It is not likely that the Lagos Town Council would now allow vacant land between other houses to be overgrown with weeds without serving an abatement notice on the owner to abate the nuisanse. It seems to me that the land may get into the same state as Mustafa Dabiri found it about 21 years ago if it is neglected for a few years, and the Lagos Town Council takes no action. It will be a wrong inference to draw from the state of the land then that no rents had ever been collected on it before.


Although the land was described as being thick bush, the evidence goes to show that Mustafa Dabiri was asked by members of the Akinwunmi fam­ily why he had not asked for their permission before he went on the land, and he then asked for and obtained their permission. This is definite evi­dence that the Akinwunmi family did not abandon their land.


Although the 2nd defendant could not produce the document relating to the land his father bought at a sale by the Supreme Court following execu­tion in 1892 because it was lost in Mr Benson’s office, there could be no doubt from the 2nd defendant’s evidence and from the evidence of Mr Ben­son that the document did, in fact, exist. Letter, Exhibit “L” dated the 23rd February, 1953, and written by Mr Benson to Mr David, Counsel for the re­spondent, gave particulars of the document.


In my view, there was no good reason for rejecting the 2nd defendant’s evidence which had the ring of truth, especially when no one had come for­ward to refute it. The possession of the appellant’s family of the land in dis­pute, which is adverse to the rights of the Oloto family, had continued for over 60 years during which the Oloto family had made no attempt what­soever to assert whatever right they might conceive they had to the owner­ship and possession of the land. For the last 21 years, at least, the Akin­wunmi family had been exercising rights of ownership on the land without let or hindrance.


This case seems to me to be on all fours with the case of Suleman and Another v. Hannibel Johnson 13 WACA 213.


In my view, this appeal should succeed on the 4th ground of appeal as the judgment is against the weight of evidence.


1 would, therefore, allow this appeal, set aside the judgment of the Court below with the order for costs and enter judgment for the 2nd defen­dant, with 15 guineas costs in the Court below. He is awarded costs of this appeal fixed at 38 guineas.


DE LESTANG F.J.: I concur and have very little to add to the judg­ment just delivered. It was never in dispute at the trial that the property in question had been in the exclusive and undisturbed possession of the appel­lant’s family for some 20 years. There was uncontradicted evidence that dur­ing that period they had looked after it, let it out to various tenants and col­lected rents. Moreover, it seems to me a fair inference to draw from all the circumstances that the appellant’s family began occupying that property in 1892. There was evidence that in that year the appellant’s father purchased a piece of land sold by auction by order of the Court. It may well be that the land which the appellant’s father purchased is not the land in suit, but I think that everything indicates that he occupied it as such. This coupled with the presumption of continuance, namely, that in the absence of evidence to the contrary it may be presumed that no change in the possession had taken place previously, renders it highly probable that the property had been in the appellant’s family’s possession since 1892.


It is well settled by such cases as Akpan Awo v Cookey Gam 2 NLR 100 and Suleman and Another v Johnson 13 W.A.C.A. 213, that in the exercise of its equitable powers the Court will not disturb long and undisturbed pos­session even in favour of the real owner by native law and custom. As Lord Maugham said in Oshodi v Balogun and others 4 W.A.C.A. 1:


“…..their Lordships do not desire to throw any doubt on the decision of the Full Court in the case of Akpan Awo v Cookey Gam (2 Nig. Law Rep. 100) and other decisions of that character. In such a place as Lagos, where the native law is in some respects in a fluid state as the result of the pressure of the necessities of trade and of European laws and customs it may well be just and equitable, in the absence of a statute of limitation, to hold it in­equitable to deprive persons of property of which they have held undisputed possession for many years, and to decide that the knowledge and acquiescence of the native family who originally owned the land may be fairly presumed, and that even though the rights of the family may appear to be remote.”


Applying this principle to this case, I consider that since the appellant’s family has been in undisturbed possession for at least 20 years, and probably for as long as 60 years, it would be inequitable to dispossess the appellant. I agree with the orders proposed by my Brother.


HUBBARD, Ag. F.J.: I concur.


Appeal allowed


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