F.S.C. 252/1961

22ND JUNE, 1962

3PLR/1962/64  (FSC)






JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)




CONVEYANCE – Sale of property by public auction – Whether notice to the whole world.

EQUITY – Laches and acquiescence – Undisturbed possession – Application of doctrine thereto under native law and custom.

PRACTICE AND PROCEDURE – EVIDENCE – Judicial notice – Nature of title under native law and custom.


LAND LAW – Declaration of title – Long and undisturbed possession – Laches and acquiescence of owner – Attitude of Court.



Adewale Thompson -for the Appellant.

O. Sikuade -for the Respondent.



TAYLOR, F.J. (Delivering the Judgment of the Court):   This is an appeal from the judgment of Onyeama, J. of the High Court of Lagos, dismissing the claim of the plaintiff to the following:­


“(a)    A declaration of title in fee simple to an area of land covered by a deed of conveyance of the 5th October, 1925 and duly registered in the Lands Registry Lagos as No. 86 at Page 86 in Volume 196 of the Register of Deeds.


(b)     Possession of the said land.”


It is common ground between the parties that the Oloto Family were the original owners of the land in dispute in this appeal. The plaintiff’s case in the Court below was that one Sole Oba sold the land to Lucy Macaulay, who, through an auctioneer, sold to the plaintiff. The plaintiff deposed to acts of ownership exercised by him over the land by planting certain fruit and other trees thereon, fencing it, and putting his signboard at each corner of the land. Throughout the plaintiffs case in the Court below, neither in the Statement of Claim nor in the evidence was any endeavour made to connect Sole Oba with the Oloto Family either as a member of the family or as the head of same. It was when the defence opened and the head of the Oloto family gave evidence of the sale to the defendant that Sole Oba’s position was clarified as follows:­


“Sule Oba was a member of the Oloto Family, he owned land at Obele Odan the land was given to him by the family for farming, that his land is about a mile and a half from the land now in ques­tion.”


The learned trial Judge held as follows on the evidence before him:


”If, as has been shown, the land was Oloto family land, then Sule Oba, who was a member of the family, was not “beneficial” owner thereof, nor was he, as recited in exhibit 4, “seized in fee simple in possession free from encumbrances……….


The purported sale to Lucy Macaulay could not transfer any in­terest greater than the vendor’s. It certainly could not transfer the land “in fee simple” a peculiarly English system of land te­nure.” It follows, therefore, that the plaintiff did not acquire title to the land as the title rested with the Oloto family who had not parted with it to his predecessor in title.”


Against this judgment, three grounds of appeal were filed and argued, the substance of which can be put under two heads as follows:­


“1.     That the learned trial Judge erred in dismissing the plaintiff’s case when the defence was not considered by him


  1. That the learned trial Judge erred in dismissing the plaintiff’s claim to possession in the face of the evidence of long possession adduced by the plaintiff.”


Before considering these grounds of appeal it will be as well to refer to the application which came up for hearing with the appeal itself on the 29th May, 1960. The applicants, Mrs. Julia Wuraola Aileru and Josephine Olayide Oshinkoya, applied to this Court to be substituted for John Olusoyi Gansallo, their father, and plaintiff in the action, who died after delivery of judgment. According to the affidavit accompanying the motion, the applicants obtained Letters of Administration of the personal property of the de­ceased. This did not by itself entitle them to administer the real property of the deceased. Mr. Thompson, for the applicants, argued that the applicants being the only children of the deceased, and their mother being married to the deceased under Native Law and Custom, they were solely entitled to the exclusion of the mother, to the real and personal properties of the deceased. The order for substitution was made on Counsel’s undertaking to file further affidavit disclosing the fact of marriage according to Native Law and Custom between the deceased and the applicants’ mother. This was duly done on the 30th May, 1962, and, on the 7th June the respondent indicated, by letter, that he did not intend to refute the facts so deposed to. I shall from now on refer to the applicants as the appellants in this appeal.


Returning to the grounds of appeal, Counsel argued on the first ground that, on the authority of Aina Edu & Anor. v. Yesufu Oba and Anor. W.A. C.A. 3801, having shown a prima facie case, he was entitled to point to the weakness in the case for the defence, and that the trial Judge erred in holding that:­


“I do not think it is necessary to consider the defence since the onus is on the plaintiff to prove his title to the land in question. In the face of the evidence the plaintiff’s claim must fail and it is ac­cordingly dismissed.”


It is necessary to see whether the plaintiff did, in fact, show a prima facie case. On the claim for title, it is common ground, as I have said before, that the Oloto Family were the original owners of the land. This Court would take judicial notice that that title is one under Native Law and Custom. The claim in the writ, however, was one in fee simple and further, there was no evi­dence adduced to show how the appellants’ title was traceable to the Oloto Family. In the face of this I fail to see how the learned trial Judge could have come to any other conclusion. There is, in my view, no substance in this ground of appeal. On the second point as to long possession, learned Coun­sel put forward the following three points for consideration:­



“(a)    That the Oloto Family had constructive notice or knowledge of the appellant’s long and adverse possession.


(b)     That the sale by public auction from Lucy Macaulay to the appel­lants’ father constituted notice to the world.


(c)     That in view of these matters, even if the title of the appellants is weak, their possession should not have been disturbed.”


It is true that the Courts in Nigeria have refused to disturb the long and undisturbed possession of persons on land on the principle that the owner of the land has stood by or acquiesced in the possession of the former and that in such circumstances it would be inequitable to apply strict native law and custom to assist the owner. This principle is stated in two of the cases to which our attention was drawn by Mr. Thompson, Counsel for the appel­lants, to wit:-Harriet Rori & Ors v. Chief Oloto 7 W.A.C.A. 154 at 155 and Oshodi v. Balogun 4 W.A.C.A. 1 at page 6. In the latter their Lordships of the Privy Council said that:­


“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 fairly be presumed, and that even though the rights of the family may appear to be remote.”


It should, however, be borne in mind that in that particular case the rights of the Oshodi family was to the reversion in the property which had been granted out by Chief Oshodi Tappa to his domestics. In the case on appeal there is no question of reversion which would automatically attach to it the knowledge by the family of the possession of the person seeking to set up his long possession. I do not want to be understood as saying that the principle does not apply in cases such as the one before us. I merely point out this fact on the issue of presumption of knowledge and acquiescence for each case must be judged on its own set of facts. What are those facts in the present case? The two witnesses who gave evidence on the question of possession were the appellants’ father and one Asani Olekuso. The former alleged that he bought the land in 1925 at a public auction; that he planted certain trees on the land; and that he appointed a caretaker to look after it in addition to fencing it. The caretaker is dead and his wife who is alleged to have looked after the land on the death of her husband was not called as a witness, nor Lucy Macaulay, the appellants’ predecessor in title. According to Gansallo, he went on the land only about four times a year; the fencing he erected was made of leaves, and he said that he had a signboard up at each corner of the land. His witness Asani Olekuso said this under examination-in-chief:­


“I have been on the land when running errands for the plaintiff, this was ten years ago; I used to visit the land once or twice a month.”


and under cross-examination he went on to say that:­


“I do not know the boundary of the land. I know the boundary of the land, the plaintiff showed me the boundary         .         .         .         .         .         .


I did nothing in connection with the land except to run errands; the plaintiff had a signboard on the land.”


On the point under consideration the trial Judge held that:­


“Some of his acts of possession, such as they were, appear to me to be of a kind not designed to attract attention to a claim of own­ership. No one seeing growing trees in a bush in this country would necessarily conclude that someone was asserting title to the bush. The plaintiff also says that he made a fence round the area in question with leaves. How long this fence stood he did not say.”


With these remarks of the trial Judge I wholly agree. He then went on to say that:­


“The one act which would put any one on enquiry was the putting up of the boards bearing the plaintiff’s name at the four corners of the land in question.”


When one looks at the plan of the land in question, one cannot but agree with the trial Judge when he went on to say that the evidence of possession adduced cannot afford the appellants protection. On the evidence of the surveyor a portion embracing both the southern corners of the land was ac­quired by the Lagos Executive Development Board, and a further area to the south west by the Government. The date of these acquisitions was not deposed to. The effect these acquisitions had on the signboards alleged to have been placed on each corner of the land was not clarified. The surveyor, an independent witness who made a survey of the land in 1947, was not asked whether he saw any signboard on the land and the effect of the evi­dence of Asani Olekuso is that some 10 years to the date on which he gave evidence the appellants’ father had a signboard on the land. I do not see how on this evidence it can be said that the possession of the appellants’ father was such as to make itself known to the Oloto Family or such as to draw to it such inference of knowledge or acquiescence on their part.


There is only one other point which I need dwell upon in this judgment and that is the effect of the alleged sale by public auction. Although the ap­pellants’ father gave evidence that he purchased the land in 1925 at a public auction, and is in this respect supported by exhibit “3„ the auction notice, the conveyance of the appellants’ father reads thus:­


“AND WHEREAS the said hereditaments were on the thir­teenth day of January One thousand nine hundred and twenty­ five, on the instructions of the said vendor sold by private treaty by E. O. Idowu Onitiri, Licensed Auctioneer…”


On this point I think the case of Omosanya v. Anifowoshe 4 FSC. 94 at page 99, [1959] SCNLR 217 is pertinent. There Mbanefo, F.J. (as he then was) said this:­


“On the question of the sales by public auction the circumstances in which the sales were conducted were not revealed in evidence. Appellant’s Counsel has not cited any authority for the proposi­tion that a sale by public auction constitutes notice to the whole world of the interest sold. I doubt whether any such authority exists, especially where, as in the present case, there is no evi­dence of how much publicity was given to the sale in each case.”


The statement of law in Halsbury’s laws of England 2nd edition, volume 29, at page 237, to which our attention was drawn by Counsel as being au­thority for the proposition that a sale by public auction is notice to the world, reads thus:­


“On a sale by auction, the offer is made by the purchaser in the form of a bid which is ultimately accepted by the auctioneer as the agent of the vendor. The advertisement of the sale is not itself an offer, but only a declaration of intention to hold the sale and allow the public generally to make offers.”


It is of no assistance in the present case.


For the reasons stated above I would dismiss this appeal with costs to the respondent assessed at twenty guineas.


BRETT, F.J.:         I concur


BAIRAMIAN, F.J.:         I concur


Appeal Dismissed.



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