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23RD MAY, 1969

SUIT NO. S.C. 260/1967

3PLR/1969/27 (SC)








Chief Williams – for the Defendant/Appellant

Sowemimo – for the Plaintiff/Respondent




In the Lagos High Court in Suit No. LD/36/1965 the original plaintiff claimed against the defendant now appellant:-


(i)      declaration of title in fee simple to a piece of land at Onike Abule Ondo, Iwaya, on the mainland of Lagos;


(ii)     possession of the said property;


(iii)    £100 damages for trespass; and


(iv)    an injunction.

George, Ag. J. (as he then was) gave his judgment on 10th August, 1966 non-suiting the plaintiff.

In paragraphs 4 to 8 of his amended statement of claim, the plaintiff

averred as follows:-


“4.     The said land forms portion of all that piece or parcel of land which one Theophilus Akintola Thomas became seised in fee simple by virtue of a deed of conveyance dated 21st December 1948 and registered as No. 41 at Page 41 in Volume 976 of the Lands Registry in the Office at Lagos.


  1. By virtue of a deed of partition, dated the 3rd of November, 1937 and registered as No. 67 at Page 67 in Volume 484, one Bintu Fatumo became seised in fee simple in possession of ALL That piece or parcel of land referred to in paragraph 4 above.

5(a)   By virtue of a deed of conveyance registered as No. 17 at Page 17 in Volume 1144 of the Register of Deeds kept at the Land Registry at Lagos, a parcel of land which forms portion of the land purchased by Madam Bintu Fatumo and Liasu Momoleso in 1921 was conveyed to Alhaji A. W. Elias for and on behalf of Liasu Momoleso family.


  1. The plaintiff has been in possession of the said land since 1955 and he erected a wire fence round the said land.


  1. The plaintiff also employed a caretaker who was farming and looking after the said land.


  1. Early in January, 1965 the defendant without the permission, authority or consent of the plaintiff, entered upon the said land, removed the wire fence and destroyed all crops and palm trees therein, and wrong-fully started to erect a building on the said land”.


The appellant denied all the above averments in his amended statement of defence wherein he averred in paras. 3-8 as follows:-


“3.     The defendant avers that the land was originally portion of the Oloto Chieftaincy family land seised (sic) by the said family absolutely according to Yoruba native law and custom from time immemorial.


  1. Until the sale to the defendant’s predecessor in title the said family did not alienate same or part with possession thereof.


  1. By virtue of conveyance dated 24th February, 1964, and registered as No. 3 at page 3 in Volume 1222 the Oloto Chieftaincy family sold and conveyed a large area of land (including the land claimed by and in possession of the defendant) to one Lawrence G. Da Costa and put him in possession thereof.


  1. The said Da Costa sold some 2 plots to the defendant and put him in possession.



  1. The defendant is unable to plead specifically to the amended statement of claim as the identity of the land claimed by the plaintiff is not clear and is therefore unable to admit or deny paragraph 3 of the amended statement of claim.


  1. The defendant denies that plaintiff was ever in possession of the land in the manner described in the amended statement of claim or at all”.


Although it is common ground that the land in dispute which was part of a larger area of land originally belonged to the Oloto family, the following history of the respondent’s title emerged from the averments in the amended statement of claim as well as from the evidence adduced in support.


The Oloto family in 1918 allotted a piece of land measuring about 14 acres and of which the land in dispute is a portion to one Tekobo Fagbayi (also known as Tekobo Oloto), a member of the Oloto family for his use and occupation. In 1921, Tekobo Fagbayi got into debt and after judgment had been obtained against him the land was sold under a writ of fifa. The Oloto family acquiesced in the sale. With regard to the sale and the extent of their acquiescence, the present Oloto and head of the Oloto family (6th plaintiff’s witness) testified as follows:-


“My family gave a piece of land to Tekobo Oloto. Tekobo owed some-body and that person attached the property and it was sold. The family accepted hence we acknowledge Momoleso as the owner”.


When pressed further about the sale, he testified further under cross-examination as follows:-


“My family gave Tekobo the land for use and occupation. He sold it. A member of the family given land for use and occupation cannot sell the land without the consent of the family…. We don’t usually give members of the family an outright gift. But if they are in trouble the family allows them to sell the property with our knowledge…. Members of my family know the extent of the land. I never visited the land, but Sule Oba and Sarumi inspected the land”.


The purchasers were Bintu Fatumo and her husband Liasu Momoleso. No certificate of purchase or a plan showing the area of land purchased by them was produced in evidence. Bintu Fatumo (2nd plaintiff’s witness), could not even produce the purchase receipt. In 1937, after the death of Momoleso, the children of Momoleso partitioned the land into two, one portion measuring 8.713 acres was allotted to Bintu Fatumo and the other portion measuring 5.945 acres to the children of Momoleso one of whom is Alhaji Elias (5th plaintiff’s witness). Bintu Fatumo sold her portion in 1148 to one T. A. Thomas and executed the conveyance (exh. ‘D’) in his favour. In July, 1955, Thomas sold a portion measuring about 1017 square yards out of the land to the respondent and executed in his favour the conveyance exhibit ‘A’. There is nothing in the plan attached to exhibit ‘A’ showing the actual location of the land bought by the respondent within the 8.713 acres sold to Thomas.


After the purchase the respondent employed labourers to clear the land which was then thick bush, erected a barbed-wire fence round it, put a sign board with his name on it on the land and employed a caretaker named Anthony to look after it. In 1964, as a result of a report made to him by the caretaker, the respondent went on the land and there found that his pillars and fence had been removed by the appellant and one Da Costa who had sold the land to him.

Briefly put, the case of the appellant is that he bought the land in dispute in December, 1964 from one Da Costa and obtained the conveyance exhibit ‘C’. This land is a portion of a larger area of land which Da Costa bought early in 1964 from the Oloto family who were the original owners. Da Costa obtained a conveyance (exh. ‘H’) in respect of the sale. In support of his own averment of possession the appellant testified as follows:-


“I am in possession of the land now. Apart from the fence I erected on the land there is a building foundation on the land.”


To further questions on this point, he replied under cross-examination as follows:


“There was no wire fence around the land I bought. I did not see any sign board on the land”.


In his judgment, the learned trial judge observed that no evidence was adduced by the respondent to prove that the land in dispute conveyed to partition (exh. ‘E’) and later sold to Thomas, the respondent’s vendor. With respect to the interest which the respondent could have acquired if it had been possible to identify the said land in dispute, the learned trial judge found further as follows:-


“If the plaintiff had succeeded in proving that his land fell within the land purchased by Madam Bintu Fatumo, he would surely have obtained an equitable interest in the land, which coupled with his possession for nine years could have defeated the defendant’s claim. The defendant’s claim is based on a conveyance by the Oloto Chieftaincy family but in my view since the Oloto Chieftaincy family had consented to the sale at execution in 1921 they had abandoned their interest in the land sold to Momoleso and Bintu with the result that any subsequent conveyance is ineffectual to convey the fee simple”.


Finally, while agreeing that the sale by the court to Bintu and Momoleso could have passed only the interest of Tekobo (i.e. the use and occupation) in the land to the purchasers, the learned trial judge held that because of the evidence of the Oloto (6th plaintiff’s witness), which he believed, that the sale was conducted with the knowledge and consent of the Oloto Chieftaincy family he was of the view that both Momoleso and Bintu Fatumo obtained an equitable interest in the land. Having, however, found that the land claimed by the respondent could not be identified, he non-suited him.


It is against this judgment that the appellant has now appealed to this Court. The main complaint which could be discerned from the grounds of appeal argued by Chief Williams for the appellant is that instead of being non-suited, the respondents’ claim should have been dismissed because:-


(a)     he failed to give evidence of the identity of the land in dispute notwithstanding the clear averment on this point in para. 7 of the appellant’s statement of defence; and

(b)     even if the land could have been identified all he (the respondent) could buy and indeed bought from Thomas was what was conveyed to Thomas by Bintu Fatumo which was no more than the right, title, and interest of Bintu Fatumo which, from the evidence, was limited only to the use and occupation granted by the Oloto family to Tekobo Fagbayi.


The respondent, on the other hand, gave notice that he intended to con-tend that the order of non-suit should be varied and that judgment be entered for the respondent in terms of the writ. His ground for this contention is that the learned trial judge misdirected himself when he held that no evidence was led to show that the respondent’s land fell within the land bought by Thomas from Bintu Fatumo when there was abundant evidence before the court establishing this. During the hearing of the appeal, how-ever, learned counsel for the respondent conceded that the land in dispute was not properly identified.


With respect to Chief Williams first contention, it is well settled that where a plaintiff, in an action for declaration of title, failed to prove his case the proper order to make was one of dismissal: (see Kodilinye v. Odu (1935) 2. W.A.C.A. 336 at p. 337). There may be circumstances, however, where it is in the interest of justice to make an order of non-suit instead of dismissal. It is, for that reason, impossible to lay down any hard and fast rule as to the circumstances in which a non-suit, as opposed to a dismissal, should be ordered and it is most undesirable that in this respect the discretion of the court should be fettered or circumscribed. (see Ukia Edam & Ors. v. Aja Orie & Ors. F.S.C. 54/1962 decided on 21st March, 1963 where the decision on the same point in Dawodu v. Gomes (1947) 12 W.A.C.A. 151 was referred to with approval.) In the instant case, not only is there no proof of the portion of the Oloto family land allotted to Tekobo Fagbayi, there is also no clear evidence, in the absence of the certificate of purchase issued by the court or the plan of the land sold by the Deputy Sheriff, to show that it was this same land that was bought by both Bintu Fatumo and Liasu Momoleso under the writ of fifa and which was later partitioned. The head of the Oloto family (6th plaintiff’s witness) said he never visited the land. Furthermore, there is nothing in the record to connect the land bought from Thomas by the respondent with the portion allotted to Bintu under the deed of partition and which she later sold to Thomas. To our mind, these gaps in the respondent’s root of title go beyond a mere failure to identify the land in dispute. We are therefore constrained to point out that, in these circum-stances, it would have been necessary, bearing in mind this court’s decision in Craig v. Craig [1967] N.M.L.R. 52, that the learned trial judge should have asked counsel for the parties to address him on the point before making the order of non-suit. This ground of appeal must succeed.


With regard to the other point canvassed by learned counsel for the appellant, it is our view that what was sold to Bintu Fatumo and Tekobo Momoleso in 1921 was the right to the use and occupation of the land granted by the Oloto family to Tekobo Fagbayi. Even if the land could be identified and the evidence of the Oloto (6th plaintiff’s witness) that the family consented to the sale was believed, this would mean no more than that the family agreed that this right of Fagbayi should be sold to the purchasers. In effect, therefore, what Bintu Fatumo bought in 1921 and later sold to Thomas was this right of Fagbayi to the use and occupation of the land. The legal estate in the land still remained with the Oloto family and this, in our view, they effectively conveyed to Da Costa when they sold the land to him in 1964. It is our view that the learned trial judge was in error when he held that the respondent, by virtue of his purchase of the land from Thomas, would have acquired an equitable interest in the land had it been possible to identify it. He was also in error for the reasons which we had set out above when he held that since the Oloto Chieftaincy family consented to the sale under a writ of fifa in 1921, they had abandoned their interest in the land sold thereby to Bintu and Momoleso.


There is one other point. Learned counsel for the respondent argued before us very strongly that because the respondent and his predecessors in title had been in continuous possession of the disputed land, the respondent, if only for that reason, should have been declared the owner. On this point, we would do no more than to refer counsel to the following observation of this Court in Do Costa v. Ikomi SC. 736/1966 delivered on 20th December, 1968. It is as follows:-


“Notwithstanding that this counsel submitted that it was sufficient for the plaintiff to establish her claim if she showed long and undisturbed possession acquiesced in by the Oloto family, but to our mind, this submission quite overlooks that here the plaintiff was not seeking to rely on undisturbed possession to resist a claim by the Oloto family but it was, in counsel’s submission, relying on long possession to establish a claim for declaration of title. Not only is long possession and acquiescence really a weapon more of defence than of offence, but it must also specifically be pleaded and this was not done here. In our view the plaintiff’s claim stood or fell on establishing a good title derived from the Oloto family and this she failed to prove while to the contrary the defendant had established that he had a good title from the Oloto family. The plaintiff’s long possession was, therefore, only that of a tress-passer or a squatter and would not enable her to succeed against the true owner who was in fact proved to be the defendant”.


We are in no doubt that regardless of the evidence of long possession which the learned trial judge accepted, the respondent could not succeed in his claim against the appellant who had acquired a good title to the disputed land by virtue of the registered conveyance (exh. ‘C’) which he obtained from Da Costa who had bought from the Oloto family, the original owners of the land. As we have pointed out in the case of Da Costa v. Ikomi (supra):


“Possession may under section 145 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title”.


For the above reasons the order of non-suit cannot be allowed to stand. The appeal is allowed and the judgment of the learned trial judge in Suit No LD/36/1965, including the order as to costs, is hereby set aside. Since his predecessors’ long possession was either “that of a trespasser or a squatter” the respondent’s claim for possession, damages for trespass, and for an injunction cannot succeed. We therefore order as follows:-


(a)     that the respondent’s case be dismissed and this shall be the order of the Court; and


(b)     that the appellant be awarded costs in the court below assessed at 30 guineas and in this court at 42 guineas.


Appeal allowed: Claim dismissed.



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