CITATION: [1968] NSCC 309

ADEMOLA                                                        CHIEF JUSTICE OF THE FEDERATION
COKER                                                               JUSTICE, SUPREME COURT
LEWIS                                                                JUSTICE, SUPREME COURT


LAWRENCE GREGORIO DA COSTA                                                                                                     APPELLANT


STELLA OMOWALE IKOMI                                                                                                                   RESPONDENTS
[Married woman for and on behalf of herself and all the other children of E.B. Ogunbayo (deceased)


LEWIS, J.S.C. (Delivering the Judgment of the Court): On the 4th of April, 1966

Caxton-Martins J. in the Lagos High Court in suit LD/315/65 gave judgment with 80 guineas costs in favour of the plaintiff in terms of her writ (save that he assessed general damages at £50 instead of the £100 claimed) which read:-

“The plaintiff’s claims-against the defendant are for :-

(i.) A declaration that all that piece or parcel of land situate and lying on both sides of Olumo Street, Iwaiya Odo, Yaba East in the Federal Territory of Lagos belongs to the plaintiff for an estate in fee simple.

(ii.) The sum of £100 (one hundred pounds only) being General Damages for trespass committed by the defendant, his servants and or his agents and workmen on the said land between April 1965 and May 1965 by wrongfully entering upon that part of the said land in the possession of the plaintiff.

(iii.) An injunction restraining the defendant either by himself or by his servants, agents and or workmen from committing further acts of trespass on the said land.

At all times material to these proceedings the plaintiff was and is in possession of that part of the said land upon which the Defendant had wrongfully entered”.

The plaintiff in her statement of claim pleaded in paragraphs 5, 6 and 7 as follows:-

“5. The said land formed part of a large area of land originally owned by the OLOTO FAMILY.

6. On or about the 16th day of July 1918 a piece or parcel of land of which the land in dispute formed a portion was sold by one Chief Ajayi Oloto, with the approval of the Oloto Family to one Jinadu Oseru for an estate in fee simple in possession free from incumbrances.

7. On completion of the said sale the said Jinadu Oseru entered into possession of the said land (but did not obtain a legal conveyance thereof though the transaction was witnessed by a memorandum in writing) and exercised acts of ownership thereover”.

and then in subsequent paragraphs of the statement of claim traced the title to her father who bough part of the land from the executor of one Ephraim Michael Ekundayo Agbebi and  received a conveyance in fee simple dated the 27th of April, 1951 in respect of k though he had, according to paragraph 12 of her statement of claim, been put into occupation of the land since the 2nd of April, 1937 (though the said Ephraim Michael Ekundayo Agbebi had in fact it appears from the conveyance of the 27th of April, 1951 (exhibit „2?) died on the 7th of October, 1935). The father of the plaintiff bought the remainder of the land in question from one Nathaniel Theophilus Ojo Davis and received a conveyance in fee simple of it dated 29th February, 1944. These two conveyances which were respectively exhibits 2 and 1 were the only documents of title tendered by the plaintiff which were exhibits in the case. The defendant for his part agreed with the plaintiff that the original owner was the Oloto Family and he pleaded in paragraphs 5 and 6 of his statement of defence as follows:-

“5. The land was at all material times in possession of the Oloto Chieftaincy family, the original owner according to Yoruba native law and custom, the said family did not sell the land to any person as alleged in paragraph 6 of the statement of claim or at all.

6. On or about the 20th December 1963 the Oloto Chieftaincy family through their accredited head and representatives sold a large area of land at Onike Village to him and conveyed same to him and installed him in possession thereof. The deed of conveyance is registered as No. 45 page 45 in Volume 1217 of the Lagos Land Registry”.

The learned trial Judge in his judgment said:-

“The second defendant’s witness Chief Emmanuel Jaiyeosimi Ogundimu, the Oloto of Oto, denied the right of his predecessor-in-office to sell the family land. It is a notorious fact that a menace in the sale of land had been created in the community of Lagos by one Chief selling land with or without the content of members of family and years later his successor in office tried to re-sell the same piece of land to a would-be purchaser. Unfortunately no records were kept and none was produced to show the plots of land which had been sold and those which remained unsold................... I find as a fact that the plaintiff by her father had been In long, continuous and undisturbed possession and her claim through the sale by the previous Oloto was well-founded. The defendant was in the witness box very economical with the truth and I reject his evidence that the land in dispute was bush in 1963. No doubt the second defendant’s witness sold to the defendant but did so without sufficient and reliable investigation which should have disclosed to him that the Oloto family had parted with the land many years ago”.

Chief Coker for the appellant has argued together only 3 of the grounds of appeal filed, namely:- “2. The learned trial Judge erred in law in entering judgment for the plaintiff, who having admitted the title of the Oloto Chieftaincy family, failed to trace the root of Title to the said Family.

3. The learned trial Judge erred in law and therefore came to a wrong decision in that the plaintiff failed to justify her possession of the land having admitted in her Statement of Claim that the land originally belonged to the Oloto Chieftaincy family.

4. The learned trial Judge misdirected himself on the facts and therefore came to a wrong decision in law in giving judgment for a plaintiff when he held that the Oloto family had sold the land in dispute in the absence of any of such sale before him”.

It is his submission that the plaintiff in her pleading relied on a title derived from the Oloto family yet failed to prove it, as the only evidence she offered as to title was the conveyance to  her father dated 29th of February 1944 (exhibit “1”) and the conveyance to her father dated 27th of April, 1951 (exhibit “2”), which were from subsequent holders not proved to hold from the Oloto family. In contrast, he submitted, the defendant pleaded and proved that he derived his title from a conveyance dated 20th of December, 1963 (exhibit “4”) from the Oloto family as was in our view accepted by the learned trial judge when he said:-

“No doubt the second defendant witness sold to the defendant”.

In view of this counsel submitted to us that the plaintiff had failed to make out   her claim and that It should therefore have been dismissed.

Mr. Oritseje Efueye for the plaintiff for his part conceded that she had pleaded a grant from the Oloto Family and thought the plaintiff’s title was not proved be-yond the conveyances exhibits t and 2, he nonetheless submitted that the plaintiff claimed an absolute grant from those conveyances and also submitted that the plaintiff had been proved to have been in long possession and that this was sufficient to establish her claim, as the learned trial judge found. The learned trial judge however in fact said:-

“I find as a fact that the plaintiff by her father had been in long continuous and undisturbed possession and her claim through the sale by the previous Oloto was well founded”.

thus showing that he found in addition to long possession that her claim to derive title from a previous Oloto was well founded, though as Mr. Efueye himself conceded this was not in fact proved. Notwithstanding 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 was, in counsel’s submission, relying on long possession to establish a claim for a declaration of title. Not only is long possession and acquiescence really a weapon more of defence than of offence, but it must also be specifically 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 whilst to the contrary the defend-ant had established that he had a good title from the Oloto family. The plaintiff’s long possession was therefore, only that of a trespasser or a squatter and would not enable her to succeed against the true owner who was in fact proved to be the defendant. We would only add that Mr. Efuyeye sought to rely on the case of Suleman v. Johnson 13 W.A.C.A 213, but that case was in our view in no way like the present one as the original ownership of the Oloto family there was disputed whilst It was the contention of both parties here that the Oloto family was the original owner. In any case on the basis of ownership by the Oloto family the long possession of the defendant in Suleman v. Johnson (supra) acquiesced in by the Oloto family was there a defence to the plaintiff’s claim for a declaration of title, unlike the present appeal where the plaintiff’s counsel now seeks solely on long possession and acquiescence (though the learned trial judge as establishing not a defence but the plaintiffs claim to a declaration of title, yet the onus of proving acquiescence rests on the person pleading it. (See Alade v. Abodshade 5 F.S.C. 167). Not only was this not her case as presented to the High Court on her pleadings, but, even ff it had been, it would have no merit when seeking to rely on long possession to establish effectively a right to a declaration of title against another person who proved a good title from the original owner. 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.

The appeal is accordingly allowed and the judgment and order as to costs of the High Court is set aside and judgment is entered therein for the defendant and the plaintiffs claims are dismissed. The defendant/appellant is entitled to his costs in the High Court which we assess at 47 guineas and to his costs of this appeal which we assess at 48 guineas.