3PLR – MRS. FUMILAYO KUTI V. J.B. ATUNRASE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MRS. FUMILAYO KUTI

V.

J.B. ATUNRASE

FEDERAL SUPREME COURT OF NIGERIA

29TH JULY, 1960

F.S. C. 9/1960

3PLR/1960/63 (SC)

OTHER CITATIONS

 

 

BEFORE THEIR LORDSHIPS

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

MYLES JOHN ABBOTT, F.J.

JOHN IDOWU CONRAD TAYLOR, AG. F.J.

REPRESENTATION

Mr. O. Moore (Mr. M. A. Thompson with him) -for the Appellant.

Mr. D. O. Coker -for the Respondent.

MAIN ISSUES

LAND LAW – Declaration of title – Effect of failure to establish nexus between land in dispute and plan tendered – Guiding principles towards resolving dispute over land ownership based on competing titles

PRACTICE AND PROCEDURE: Trial court misdirecting itself – Effect thereof 

MAIN JUDGMENT

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

The appellant has appealed against the judgment of the High Court of Lagos granting to the plaintiff/respondent a declaration of title to a piece of land at the junc­tion of Ojuelegba village road and Modele village road, Surulere in the Mainland of Lagos, as well as damages for trespass and injunction.

 

It is common ground that the land in dispute originally belonged to the Oloto Chieftaincy family. The plaintiff/respondent claims that his predeces­sor in title, one Gbamgbola Amao bought the land direct from Chief Omidiji Oloto who died without executing a deed of conveyance in his favour. His successor, Chief Immam Ashafa Tijani Oloto, who refused to execute a deed of conveyance for the land, was ordered by the Court in Suits Nos. 362­365/52 (Exhibit 5) in the High Court of Lagos, to do so. On the 13th Sep­tember, 1956, he executed a deed of conveyance (Exhibit 3) in favour of Gbamgbola Amao for the land in dispute. The plaintiff/respondent claims he derives his title from that purchaser for value, Gbamgbola Amao.

 

The appellant, on the other hand, said she bought the land in dispute at a public auction in 1932 and claimed to have derived her title from one To­kosi whose rights, title and interest in the land were sold under a writ of Fifa. It is not disputed that Tokosi claimed to have acquired his interest in the land from the Oloto family by virtue of a deed of conveyance (Exhibit 12).

 

The only ground of appeal argued by Mr. Moore is that the learned trial Judge erred in law to have given judgment for the plaintiff/respondent when there was no evidence of the identity of the land covered by the judgment of the Court in Suit Nos. 362-365/52.

 

If this argument succeeds it will be unnecessary for this Court to decide whether the conclusions of the learned Judge were correct as to who, bet­ween the two claimants, has a better title to the land.

 

The basis of the plaintiff/respondent’s claim appears to be in paragraphs 5 and 6 of his Statement of Claim, which are as follows:­

 

“5.     On the 16th June, 1927, Chief Omidiji Oloto and other accre­dited representatives of the said family sold various portions of the Family land to one Bamgbola Amao, who immediately took possession, but no deed of conveyance was executed in his favour.

 

  1. In pursuance of the judgment of the then Supreme Court (now High Court) consolidated suits 362-365/52, Chief Immam Alhaji Ashafa Tijani, the present head of the Oloto Chieftaincy Family together with the other accredited representatives of the said Family by virtue of an instrument dated the 13th September, 1956, and Registered as No. 33 at page 33 in Volume 1080 of the Federal Lands Registry, Lagos, conveyed absolutely to the said Bamgbola Amao, the hereditaments for an estate of inheritance, free and discharged from all incidents of native customary laws.”

 

The defendant/appellant did not admit these two paragraphs of the Statement of Claim and therefore at the hearing before the learned trial Judge, the plaintiff tendered and put in evidence a certified copy of judg­ment in Suits Nos. 362-365 of 1952 which was marked Exhibit 5. The land conveyed in those consolidated suits was surveyed and plans were put in evi­dence at the hearing of the case as evidenced by the judgment, Exhibit 5. The plans were then marked Exhibits C, D, F, and G. The plans were refer­red to in that judgment (Exhibit 5) as “the plans of the pieces of land.”

 

In the present case the plan of the land claimed by the plaintiff/respon­dent was not filed, although on the 14th day of July, 1958, the court ordered it to be filed. The plaintiff/respondent relied on the plan attached to the deed of conveyance, Exhibit 3. The plaintiff did nothing during the trial to relate the plan attached to Exhibit 3 to the plans Exhibits C, D, F and G tendered in evidence in the case Exhibit 5 between his predecessor in title and the Oloto family. Indeed, the onus was on the plaintiff/respondent to prove from his own plan that the land he now claims is the same land he relies upon as establishing his predecessors in title’s ownership.

 

There is another point in this appeal, which although not taken up by Counsel for the appellant, to which I will refer. In his judgment the learned Judge said as follows:­

 

“The defence does not, however, raise the question of or rely on long possession, and I am therefore left to decide this issue of title on the evidence of the rival claims……..”

 

This is clearly a misdirection. A cursory glance at paragraph 14 of the State­ment of Defence makes it clear that the defendant relied very much on long possession.

 

By reason of the above premises, I would allow this appeal. I would set aside the judgment and order for costs made in the Court below and will order that the case be heard “de novo” before another Judge.

 

Costs of the trial in the Court below to await the result of the next trial. Costs of this appeal are assessed at 40 guineas.

 

ABBOTT, F.J.:

I concur.

 

TAYLOR, AG. F.J.:

I concur.

 

Appeal allowed. Retrial ordered.

 

 

 

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