3PLR – KASUNMU AND ANOTHER V. ABED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KASUNMU AND ANOTHER

V.

ABED
SUPREME COURT OF NIGERIA

SUIT NO. SC 96169.

11TH FEBRUARY, 1972.

3PLR/1972/78  (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:   

COKER, J.S.C.

LEWIS, J.S.C.

UDOMA, J.S.C.

 

BETWEEN

  1. ADE KASUNMU
  2. V. O. ADELAJA

AND

MADAM SAUDATU ABEO

REPRESENTATION

Chief F.R.A. Williams, for the Appellants.

Pekun Lukanbi, for the Respondent.

MAIN ISSUES

Land Law – Root of title – Trespass – Claim for Possession – Consideration for determination of better title.

MAIN JUDGMENT

COKER, J.S.C. (Delivering the Judgment of the Court): The present appellants were the 1st and the 4th defendants respectively in an action instituted In the High Court, Lagos, by the respondent (as plaintiff). The writ of summons is endorsed as follows:

 

‘The plaintiff claims from the 1st, 2nd, 3rd and 4th defendants jointly and severally the sum of six hundred pounds (£600) damages for trespass committed by the 1st, 2nd, 3rd and 4th defendants on the plaintiff’s land and building situate lying and being at No. 141, Brickfield Road, Ebute-Metta on the 2nd day of December, 1967 and injunction restraining the 1st, 2nd, 3rd and 4th defendants, their agents and/or servants from committing any further acts of trespass to the said land with the building thereon.”

 

In due course the plaintiff filed a statement of claim in which she described the land in dispute as being “and situate at No.141, Brickfield Road, Apapa in the mainland of Lagos” and avers as her root of title that –

 

“On the 4th day of January, 1927 one Abudu Emiabata as owner in possession sold the land to Barakatu Ajiwun and put her in possession.”

 

The statement of claim then avers that in 1930 Barakatu Ajiwun sold the land to her own mother, Madam Barikisu Animashawun and executed in 1946 a conveyance of the land for an estate “In fee simple” in favour of her own mother; that her mother at her death in 1957 devised the said property to her by her last Will and Testament, that one Gabriel Laja first trespassed on the land, that one Dr. Esin did the same thing, that she successfully took legal action against both Gabriel Laja and Dr. Esin and that now the defendants had unlawfully broken and entered upon the said land. On the other hand, the statement of defence filed on behalf of the 1st and the 4th defendant, now appellants, avers that the 4th defendants (or 2nd appellant) was only an agent of the 1st defendant (now 1st appellant), that the land the subject-matter of the action originally belonged to the Oloto Chieftaincy Family, that the land and the buildings thereon were owned and occupied by one Gabriel O. Laja who had purchased the land from vendors holding a conveyance dated as far back as 1897 and that the defendants had since got their title ratified by the Oloto Chieftaincy Family and in particular that the defendants are not in trespass. The statement of defence finally pleads “all legal and equitable defences”.

 

At the trial there was a large body of evidence. The parties gave evidence in support of their respective pleadings and in particular the following are some of the documents produced by or on behalf of the plaintiff:

 

(i)      Plan of the land in dispute admitted in evidence as Exhibit “A”;

 

(ii)     Indenture of conveyance dated the 21st November, 1946 from Ajiwun to Barikisu Animashawun alias Barikisu Jegede (i.e. plaintiff’s mother). This was admitted in evidence as Exhibit “B”. In this conveyance Exhibit “B”, the recital describing the radical title reads as follows

 

“WHEREAS one ABUDU EMIABATA being then seised of or otherwise well and truly entitled to the hereditaments hereinafter described and- intended to be hereby granted did on the 4th of January, 1927 sell the same to the said vendor for the sum of £40 Forty Pounds sterling as is evidenced by a purchase receipt bearing same date.”

 

(iii)    Judgment of Maxwell, J. dated the 15th June, 1927, in inter-pleader proceedings No.3148 in the then Supreme Court of Nigeria, awarding judgment of possession of the premises to Madam Barakatu Ajiwun, the vendor to plaintiff’s mother. This was admitted in evidence as Exhibit „C,;

 

(iv)    Probate and Will of the late Madam Barikisu Animashawun plaintiffs mother, showing the devise to the plaintiff. This was admitted as Exhibit ..D„;

 

(v)     Vesting Deed executed by the executors of Madam Barlkisu Animashawun in favour of the plaintiff, admitted In evidence as Exhibit 1E„.

 

(vi)    Judgment of Onyeama, J. in Suit No. LD/26/60 entitled Saudatu Abeo v. Gabriel O. Laja and Alhaja M. Ade Kasunmu. The judgment is dated the 20th July, 1965 and it non-suits the plaintiff in respect of her claims therein for a declaration of title to this same land and recovery of possession thereof. This judgment was produced and admitted in evidence as Exhibit “F”;

 

(vii)   Judgment of Omololu, J. dated the 4th December, 1964 in Suit No. LD/102/64 (High Court, Lagos) entitled Saudatu Abeo v. Dr. Esin A. Esin, awarding judgment in favour of the plaintiff against the defendant therein for declaration of title to and recovery of possession of the land in dispute. This judgment was admitted in evidence in Exhibit “G”; (viii)          Judgment of the Supreme Court in’SC.461/65: Marout.A. Kasunmu v. J.M. Scott AND 3 Ors. dated the 30th June, 1967 allowing the appeal of the plaintiff/appellant therein and entering judgment in his favour against the defendant on the claim for possession of the same property now in dispute. This document was admitted in evidence as Exhibit “H1”; (Ix)    Indenture of Ratification of sale and conveyance of the land in dispute by the Oloto Chieftaincy Family dated the 14th July, 1947 in favour of Bakare Baruba. This was admitted in evidence as Exhibit “L”.

 

It was also given in evidence by or on behalf of the plaintiff that her predecessors-in-tide were in effective possession of the land in dispute, that Laja only got into possession of the land when she was temporarily out of Lagos and that that was the time during which Laja succeeded In erecting the building now standing on the land, that by virtue of the judgment in her favour in Exhibit “G” she was restored to the possession of the land and building on the land and that since then she had been letting out portions of the building to rent-paying tenants until the defendants trespassed Into the land and claimed it as their own in 1967.

 

On behalf of the defendants a number of documents were also tendered, some of these being:

 

(i)      Conveyance dated the 18th December, 1961 from Maria Ade Peters to the 1st defendant. This was admitted as Exhibit “N”;

 

(ii)     Conveyance dated the 3rd May, 1949 from Bakare Garuba to Gabriel Oluwole Laja admitted in evidence as Exhibit “P’. This conveyance recites that Bakare Garuba became seised of the land in dispute by virtue of another conveyance dated the 21st April, 1947;

 

(iii)    Conveyance dated the 21st April, 1947 from Emmanuel Adegbite Somuji to Bakare Garuba. This was admitted in evidence as Exhibit “U1” and it recites the radical title thus:

 

WHEREAS the hereditaments hereinafter expressed to be hereby conveyed forms part and portion of the hereditaments well and sufficiently seised in fee simple in possession free from all incumbrance by one Ademuyiwa Haastrup (now deceased) under and by virtue of an Indenture made between Kadin Adamo and Amodu of the one part and the said Ademuyiwa Haastrup of the other part dated the 10th day of April, 1897, and registered as No.119 at page 46 in Volume 29 of the Register of Deed kept in the Lands Registry Office at Lagos aforesaid.”

 

(iv)    Indenture of Mortgage dated the 7th April, 1960 of the property in dispute for an amount of £2,500 by G. O. Laja in favour of Maria Ade Peters. This was admitted in evidence as Exhibit “O”.

 

There was oral evidence for the defence that the 4th defendant was not more than the disclosed agent of the 1st defendant and that the root of title of the 1st defendant is expressed in the documents Exhibits “L” and “U7”. It was also part of the case of the defence that Gabriel Laja, soon after his purchase of the land by virtue of Exhibit “P”, entered into full and effective possession of the land and indeed built a house thereon which he let out to rent-paying tenants; that Laja later and in April, 1960 mortgaged the property to Maria Ade Peters by virtue of the Mortgage Deed, Exhibit „O„ and that as he was unable to redeem the mortgage to Maria Ade Peters, she exercised her power of sale and sold the property to the 1st defendant.

 

We observed at the beginning of this judgment that the plaintiff had sued the defendant for damages for trespass and a perpetual injunction to restrain the defendants their servants and/or agents from ever trespassing on the land. We have also set out concisely the nature of the evidence, both oral and documentary, placed before the learned trial Judge in this case. In a reserved judgment in which the learned trial Judge carefully considered all the evidence, he concluded that –

 

“On the evidence before me, I am satisfied that the plaintiff and her predecessor in title had been on the land since 1927. 1 am satisfied that by virtue of Exhibit “C”, read along with Exhibit “B”, and also Exhibits “D” and “E”, she had proved her title to the piece of land which is the subject matter in dispute. That title has not been defeated by any evidence led by the 4th defendant on behalf of the first defendant.

 

I therefore hold that since the first defendant could not prove either an older and better title in himself or has not proved the superior title which he had pleaded, then of course, the plaintiff being in actual possession of the land and building is bound to succeed on her claim before the court.”

 

An at earlier stage of this judgment, the learned trial Judge had commented thus on the Instrument of Ratification (Exhibit “L”) given to Bakare Garuba by the Oloto Chieftaincy Family:

 

“Before deciding on the issue of title I wish to refer to Exhibit “L” described as a Deed of Ratification of a conveyance made between Somuji and Bakare Garuba. This Deed of Ratification was made on behalf of the Oloto Chieftaincy Family. No evidence had been led in this case that the Oloto Chieftaincy Family have any title or interest either in the property in dispute or the property covered by the Deed of Conveyance of 1897 tendered as Exhibit “C” in this case. The only inference one can draw is that the first defendant had abandoned the recital that the land in dispute formed part of the portion covered by the conveyance Exhibit “U” and which was recited in Exhibit “P”. In my opinion, this Deed of Ratification creates no interest legal or otherwise in the grantee or the grantor. There is no evidence that under native law and custom the Oloto Chieftaincy Family had any interest whatsoever in the property. For the purpose of this case, therefore, Exhibit “L” must be disregarded as creating any legal or equitable interest by which first defendant intends to sustain his claim to better title.”

 

The learned trial Judge eventually awarded damages for trespass in the amount of £50 against the defendants and granted the injunction sought as well as costs. The defendants have now appealed to this Court against that judgment and before us the judgment has been attacked generally on the grounds that the findings are not supported by the evidence before the court as accepted by the court. It is not, as we have always stated, the function of a court of appeal to substitute its own views for those of a first instance tribunal with respect to facts found by that tribunal on a dispassionate appraisal of the evidence before it. But, equally clearly a court of appeal would be failing in its duty if by adopting an attitude of over restraint it allows facts, not supported by evidence before a tribunal or inferences not arising from facts found by such tribunal, to stand. In the case in hand, the oral and documentary evidence is apparently considerable but strictly speaking the issues to be decided are rather smell. The plaintiff claims damages for trespass and an injunction to restrain the defendants from further trespass on the land. It is evident that by her claim she has put her title in issue and we think that the learned trial Judge was right when he extensively considered the respective tides of the parties for the purpose of ascertaining which of them had the better tide.

 

To start with we refer to the passage of the judgment of lower court (which we have quoted already) relating to the radical title of the Oloto Chieftaincy Family. The learned trial Judge took the view and found that it was not established that the land originally belonged to the Oloto Chieftaincy Family. We unhesitatingly point out that this finding, was wrong and clearly against the evidence before him. The defendants’ case throughout assumes the radical title of the Oloto Chieftaincy Family and indeed the witness Gabriel Laja, whose property was sold by Maria Ade Peters to the 1st defendants, relied strongly on the original ownership of the land by the Oloto Chieftaincy Family and the assurance of it to his own vendor Bakare Garuba by that family. Paragraph 8 of the statement of defence reads as follows:

 

‘That in respect of the premises Mr. Laja held a Deed of Indenture dated the 3rd day of May 1949 and registered as No. 57 at page 57 in volume 810 of the Land Registry in the Office at Lagos, the said land belonging originally to the Oloto Chieftaincy Family who maintained absolute dominion over a large area, of land inclusive of the one in dispute.”

 

In this connection we observe that, although there is the Deed to Haastrup recited in Exhibit “U1” there is the additional assurance from the Oloto Chieftaincy Family in Exhibit “L”. The conveyance Exhibit “U1” transferred the property to Bakare Garuba and Exhibit “L” confirmed whatever interest Bakare Garuba might have acquired by virtue of Exhibit “U1” and also “on behalf of Oloto Family agreed to ratify grants, confirms, accept and acquiesce to all the terms and conditions as regards to the sale ………………… as if I was made a party to the aforementioned Deed of Conveyance dated the 21st day of April, 1947……………”. Bakers Garuba then sold to Laja by virtue of Exhibit “P” on the 3rd May, 1949 and at that time Bakare Garuba was as well seised or possessed of the land by virtue of Exhibit “L” with whatever is left (if any) of the original estate or interests of the Oloto Chieftaincy Family in the said land. Thereafter came the mortgage by Laja in Exhibit “O” and a subsequent sale of the property by the mortgagee, Madam Maria Ade Peters to the present 1st defendant, Exhibit “N”. There is therefore a firm chain of tide In the 1st defendant commencing with the Oloto Chieftaincy Family who the defendants say are the original owners of the land. On the part of the plaintiff it is correct, as the learned trial Judge stated, that she did not plead that the land originally belonged to the Oloto Chieftaincy Family. In the course of her case however she produced the plan of the land in dispute as prepared by her surveyor, i.e. Exhibit “A” and also the conveyance of the land to her own mother, Exhibit “B”. She also produced the inter-pleader proceedings awarding judgment in favour of her mother’s vendor of the land dispute, Exhibit „L„, the Will of her late mother devising the property to her Exhibit “D”. In all these documents the property she is claiming is described as being at “Ebute- Metta” and not “Apapa” as falsely pleaded In her statement of claim. Even her own surveyor, Mr. Lawson, in the course of his evidence before the court described the land as being at Ebute-Metta. In the course of her own evidence at the trial and in answer to questions in cross-examination she made the following admission:

 

“I know that all the land at Ebute-Metta belonged to the Oloto Chieftancy Family.”

 

On the totality of the evidence, oral and documentary, as given by or on behalf of the plaintiff concerning the radical title to the land, it seems to us that the only possible inference is that the plaintiff has herself admitted that the land which she is claiming originally belonged to the Oloto Chieftaincy Family and that therefore she has the onus to establish a chain of title commencing with that root. Paragraph 5 of her statement of claim reads as follows:

 

“5.     On the 4th day of January, 1927 one Abudu Emiabata as owner in possession sold the land to Barakatu Ajiwun and put her in possession.”

 

This much was recited in the conveyance, Exhibit “B”, and formed part of the ipse dixit of the plaintiff at the trial, for apart from her own surveyor no other witness had tested on her behalf. It was not shown by her, as it should have been, how Abudu Emiabata got on the land. In the course of his judgment, as already pointed out, the learned trial Judge observed, concerning the title of the plaintiff, that by virtue of Exhibits “B”, “C”, “D” and “E” the plaintiff had proved her title to the land in dispute. But Exhibits “B” merely recites the possession of Abudu Emiabata. Exhibit “C” confirms that Abudu Emiabata was the judgment-debtor in the proceedings to which it relates and Exhibits “D” and “E” were respectively the Will of the plaintiffs mother and the Vesting Deed by which the executors of her own mother had transferred the property to her. Not one of them related to the root of the title to the property which in the course of her own testimony before the court she had admitted to belong to the Oloto Chieftaincy Family and there is no justification whatsoever for the inference drawn by the learned trial Judge with respect to the validity of her own title. It is manifest that in the battle of titles she had failed to establish her own such title and so far as that is concerned the title of the first defendant is clearly superior to her own irrespective of whether the plaintiff was in fact in possession – a matter with which we shall now deal.

 

There was no direct evidence of the time she had left Lagos for florin but assuming that she returned to Lagos after five years of sojourn in Ilorin, then she must have got back to Lagos in 1951. Her mother died, according to her, in 1957 and she did not institute any legal proceedings against Lela until, according to her again, 1960 (See Lagos High Court Suit No.LD/26/1960) and then she got judgment of non-suit in that case on the 20th July, 1962 in virtue of Exhibit “F”. So it dearly emerges that at least from 1951 until 1962 she was not in possession of the land in dispute.

 

There is of course a story about the fortunes of this land as from that time. We know that by the Mortgage Deed Exhibit “O” dated the 7th April, 1960, Gabriel Laja had mortgaged the property to Madam Maria Ade Peters but about the same time laja had been involved in litigation with one M.A. Okupe who eventually obtained judgment against him for a sum of £10,000. Okupe, as judgment-creditor, had then attached this same property ostensibly belonging to Gabriel Laja and had purported to sell it in execution of the judgment of the court in that case. (See the proceedings produced in evidence as Exhibit ‘T”). The highest bidder for the property at that sale was one S. A. Fisher who then bought the property and later sold it to Dr. Esin. Two matters arise for consideration here. The first is that concerning the possession of the land which Fisher attempted to wrest from the 1st defendant. The judgment of this Court in SC.461/1965 (produced in evidence in these proceedings as Exhibit “H1” by the plaintiff herself) shows that some time in 1963 (it may be earlier) the 1st defendant had instituted proceedings against four persons including S.A. Fisher for possession of the land, the first three defendants being tenants who would not attorn to the 1st defendant and the 4th, Fisher, claiming to have bought “the right, title and interest” of Gabriel O. Laja (if any) in the said land. The Supreme Court judgment is dated the 30th June, 1967 and it awarded possession to the 1st defendant herein (i.e. present 1st appellant) who had claimed for possession on the basis that the occupiers of the building had failed to attorn tenants to him. Again the obvious inference from these proceedings is that from 1962 to 1967 the plaintiff was not in possession of this land. The second matter for consideration concerns Dr. A Esin. The plaintiff gave evidence that she sued Dr. Esin in respect of this land; indeed she sued Dr. Esin for a declaration of title to the land and for recovery of possession. This action was Lagos High Court Suit No. LD/102164 showing at least that in 1964 she was not in possession of the land. Judgment in this case was given on the 4th December, 1964 (see Exhibit “G” produced by the plaintiff) and by that judgment she was ordered to “recover possession”. The defendant in that case, according to the plaintiff, went on appeal to the Supreme Court and at the time of the present proceedings in High Court that appeal was still pending in the Supreme Court; indeed the judgment in Dr. Esin’s appeal was not delivered until the 23rd June, 1969 when the appeal was dismissed by this Court. This means in effect that even if the plaintiff ever got physical possession of the land she did not do so until 1969 after the judgment of this Court on the appeal from Exhibit “G”. As against all this, there was the evidence given on behalf of the defence that the 1st defendant’s tenants have always been and are still on the land and that indeed the 4th defendant still collects rents from them.

 

On this dear analysis of the facts it is manifest that on the 7th December, 1967 when the plaintiff filed the present action she was not in physical possession of the land. By her statement of claim and her evidence in court, the plaintiff states that the defendants unlawfully entered her land “some times between August and September, 196T’. At that time her case in Exhibit “G” had started and was still pending and that case postulated that Dr. Esin and not she was in possession of the land. Even ff she had justifiably by virtue of Exhibit “G” claimed to be in possession of the land during this period in as much as the defendants contested this issue and as well claimed to be in possession at the same time, the law attaches lawful possession to the person with the better title.

 

We have already dealt with the respective titles of the parties and we are conclusively of the view that the plaintiff had proved no title whatsoever to this land. It must follow as a matter of law that she did not establish her claim for trespass to the land against the true owner. Apart from this, the evidence completely demolishes her claim to possession and establishes positively that she was always wanting to be but never actually was in possession of this land.

 

In these circumstances, the plaintiff had failed to prove her case and she must fail. The findings of title and possession in her favour by the learned trial Judge are wrong and are not supported by the plethora of evidence in the case pointing the other way.

 

The appeal therefore succeeds and it is allowed. The judgment of the Lagos High Court in Suit No. LD/596/1967, including the order for costs, is set aside and we make the following orders:

 

(i)      The plaintiff’s case be dismissed and this shall be the judgment of the Court.

 

(ii)     The plaintiff shall pay the costs of the proceedings fixed in this Court at 64 guineas and in the Court below at 51 guineas.

 

Appeal allowed.

 

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