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F.S.C. 134/1960

1ST JUNE, 1961

3PLR/1961/44 (FSC)





SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)




  1. A. Lardner – for the Appellant.
  2. A. Kotun (Sanyaolu with him) -for the Respondent.


LAND LAW -Ownership of land -Customary ownership vis-à-vis fee simple nature of interest.

LAND LAW – Ownership under customary law – Validity of transfer of land held under customary law via deed of gift – whether reason for gift need to be proved

TORT: Trespass to land – Damages thereof


ADEMOLA, C.J.F. (Delivering the Judgment of the Court):


This is an ap­peal against the judgment of Dickson, J., sitting in the High Court of Lagos. The appellant has appealed against the award of £40 damages against him for trespass to a piece of land for which the plaintiff/respondent claimed a declaration of title and damages for trespass. The plaintiff/respondent also filed a counter appeal against the refusal of the learned Judge to grant the declaration sought.


From the pleadings filed it would appear that both parties claim the land in dispute, which is at Modele Village Surulere, through one Lawani Folami who in 1918 claimed to have bought the land from the Oloto Chieftaincy family and obtained a conveyance, Exhibit C.


The case for the plaintiff/respondent is that the sale to Lawani Folami was in 1933 set aside by a judgment, Exhibit C, of the Supreme Court of Lagos on the ground that only one branch of the Oloto Chieftaincy family sold the land whilst the others were not aware of the sale. One Gbadamosi Orulebaja to whom Lawani Folami had transferred this land by sale in 1921 was affected by this judgment, but in 1952, he got the Oloto Chieftaincy fam­ily to transfer to him under a deed of gift, Exhibit F, the same land he had lost through the abortive sale to Lawani Folami by the family. In actual fact as it will be shown later, only a small portion of the land is included in the land given away by the deed of gift. In 1954, the plaintiff/respondent bought a small plot from this land from Orulebaja and obtained a deed of con­veyance, Exhibit B. This small plot is the land in dispute.


On the other hand the claim of the defendant/appellant to the land was that he bought the land in dispute from one Abudu Kadiri Buraimoh from whom he obtained a deed of conveyance, Exhibit D, in 1955; that the said Buraimoh was originally a purchaser for value from the same Lawani Folami who also sold to Gbadamosi Orulebaja.


A composite plan of the land claimed by either side, Exhibit O, was pro­duced during the hearing before the learned trial Judge and it became clear from the evidence of the surveyors called by either side that the land claimed by the plaintiff/respondent was not within the area sold in 1918 to Lawani Folami by a section of the Oloto Chieftaincy family, so that in effect the land which the whole family gave away to Orulebaja under the deed of gift, Exhibit F, is not the same land affected by the abortive sale to him. Thus it became apparent that the land the appellant claims as having been transfer­red to him by sale from Buraimoh who derived his title from Folami and which is the subject of the abortive sale to the said Folami, is not the same land now in dispute.


When the appellant’s counsel was faced with this situation, he sought to argue that the deed of gift (Exhibit F) upon which the plaintiff/respondent derived his title to the land was wrongly received in evidence in that the deed of gift was not proved. It was ruled that it was not open to counsel to argue this point as it was not made a ground of appeal and as it was clear from the record that no objection was raised by counsel at the trial to this document being received as evidence.


At that stage the appellant’s counsel abandoned the appeal and the counter appeal was argued. From the judgment of the learned trial Judge it would appear that he refused to grant a declaration because the plaintiff did not call any member of the Oloto family who is a signatory to the deed of gift (Exhibit F) to give evidence. The learned Judge further said:­


“There is no evidence before me of any relationship between Gbadamosi Orulebaja and the Oloto Chieftaincy family, whether by blood or otherwise, which would cause them in 1952, to grant a large area of land to him for no other consideration but of love and affection and the payment of £7.0.0”.


With respect to the learned Judge, as the case before him was not a dis­pute by the Oloto Chieftaincy family of the deed of gift, I fail to see why it was necessary to enter into the reasons why the deed of gift was given. The declaration sought was between the plaintiff and the defendant and if at any time the Oloto Chieftaincy family wished to dispute it, it is open to them to do so.


Counsel for the appellant also argued that it was not stated in the Writ of Summons nor in the Statement of Claim by the plaintiff/respondent what sort of declaration was sought; that although the Oloto Chieftaincy family are owners of the land under customary tenure, the deed of gift referred to the grant of the land in fee simple. This does not appear to me a ground upon which this appeal can succeed. If the interest of the Oloto family is less than an interest known as fee simple – it has been accepted that ownership under customary tenure is something less than fee simple as there are certain inci­dents attached to ownership under customary tenure – the grant is not av­oided; it is effective to the extent of the interest of the Oloto family in the land. In other words, it conveys the whole of the interest of the Oloto family in the land; the family cannot give more than what they own.


I now come to an important aspect of the case to which it would appear the learned trial Judge did not direct his mind. I refer to the plan, Exhibit O, which was put in evidence by Mr. Litan, a surveyor called by the plaintiff and agreed to by Mr. Body Lawson the defendant’s surveyor. The plan is a com­pilation of the land covered on the various deeds tendered in evidence. In this plan land edged green shows the land sold to Folami by a section of the Oloto family which sale proved abortive. To the south of this land is land edged yellow which indicates land covered by the deed of gift, Exhibit F, which the Oloto Chieftaincy family gave to Orulebaja. Only about 1/8th of this land is included in the land edged green. Inside the land edged yellow given to Orulebaj a by the deed of gift (Exhibit F) and at least 100 feet away from the land edged green (the abortive sale to Folami) is the land in dis­pute; it is edged red. Land claimed by the defendant/appellant, by the nature of his claim, would come under land included in the abortive sale – edged green. Land claimed by the plaintiff/respondent would come under land in­cluded in the Deed of Gift – edged yellow. It follows that land sold to the de­fendant/respondent would be inside the green border and at least 100 feet from the land in dispute.


Had the learned trial Judge directed his mind to this plan (Exhibit O) he would have found his job easier.

In the circumstances, it is clear that the appellant has no claim whatever to the land in dispute and his claim to it was rightly rejected by the learned trial Judge. It is not disputed that he went on the land. This clearly is tres­pass. His appeal will therefore be dismissed.


With regard to the cross-appeal, on the whole case and in view of the foregoing, it is difficult to see why the plaintiff was refused a declaration of title to the land. His cross-appeal will be allowed and the declaration sought is hereby granted to him. It will be a declaration that he is owner of the land under customary tenure.


The plaintiff/respondent is entitled to the costs of this appeal which is assessed at 25 guineas. In the Court below he had a reduced costs of 30 guineas as he was deprived of his costs in respect of the declaration of title. Costs to him in the Court below will be increased to read 40 guineas.


UNSWORTH, F.J.: I concur.


TAYLOR, F.J.: I concur.


Appeal dismissed Cross-appeal allowed


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