⦿ CASE SUMMARY OF:
E. O. Fasoro & Anor v. Olalere A. Beyioku & Ors (1988) – SC
– Title to land;
– Acts of possession;
– Proving title to land;
1. E. O. Fasoro;
2. Dr. I. B. Ogun
1. Olalere A. Beyioku;
2. Alha Ji O. Togunde;
3. Salawu A Jani;
4. A Jitoni Beyioku
(1988) NWLR (Pt.76) 263;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Professor S. A. Adesanya.
* FOR THE RESPONDENT
– Mr. J. O. A. Ajakaiye.
⦿ FACT (as relating to the issues)
The Appellants who were the Plaintiffs in the Court of first instance sued the Defendants now Respondents claiming:- “(a) Declaration of title to that piece or parcel of land lying, situate and being at Mile 6, Old Ife Road, Ibadan. (b) N500.00 damages to each of the plaintiffs, for trespass committed by the Defendants since May, 1975. (c) Injunction restraining the Defendants, their servants and/or agents from committing further trespass on the land”.
From paragraphs 3 and 4 of the Amended Statement of Claim, it is clear that “the land in dispute” is not just one parcel of land but two distinct parcels bought on different dates and conveyed to each Plaintiff again on different dates. The area sold to the 1st Plaintiff as shown on the plan tendered as Ex. A is Area marked “B” verged Red and the parcel claimed by the 2nd Plaintiff is Area marked “A” verged Blue. The Root of Title pleaded by each Plaintiff was Sale by the Olayalo Family the traditional owners of the land. This sale was in each case covered by a Conveyance in English form as pleaded in paragraphs 10 and 11 of the Amended Statement of Claim. In addition to the Sale and Conveyance pleaded, the 1st Plaintiff pleaded in paragraph 14(a) of the Statement of Claim payment of “compensation for his crops on the land in dispute” by the Ministry of Works etc. during the construction of the Agodi Water Supply pipe-line.
The Defendants denied in paragraph 30 of their Statement of Defence that the land in dispute ever belonged to the Plaintiffs’ vendors and in paragraph 31 the Defendants pleaded that the Plaintiffs “have never at any time taken possession either physical or otherwise of the land in dispute”. The case of the Defendants as pleaded in paragraph 5 of their Statement of Defence was that “the entire area verged Red on plan No. MAY.228/77′ (tendered as Ex. K) “was granted to Beyioku Iseke, the great ancestor of the 1st, 3rd, 4th and 5th defendants by Efun, one of the great Ibadan warriors”. The area the plaintiffs are claiming is verged green in Ex. K. After this customary grant by Efun after the Ijaiye war, the Defendants’ ancestors and predecessors in-title went into effective possession as pleaded in paragraph 9 of the Statement of Defence.
In paragraphs 10 to 19, the Defendants pleaded their geneology and descent from Beyioku.
The trial judge gave judgement for the Appellant (as Plaintiff). The Defendants appealed to the Court of Appeal which appeal was allowed and the trial judges verdict set aside.
The plaintiffs have further appealed to this Supreme Court.
1. Whether from the oral and documentary evidence from the Plaintiffs/Appellants in support of their various acts of ownership it can be said that the acts of ownership spotlighted by the learned trial judge are not positive and of sufficient length of time to warrant the inference of exclusive ownership as to support the reliefs granted in favour of the (sic) respondent?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH 500N COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It was very much in issue when the Plaintiffs’ vendors’ title and their capacity to sell are both challenged by the Defendants, the onus is on the plaintiffs to establish that title. Also from the Plaintiffs’ own pleadings, radical title was originally vested in the Olayalo family. It was thus their duty to trace the devolution of that title from the Olayalo family to their vendors, otherwise the principle of nemo dat quod non habet will apply. This they did not even plead let alone prove. All the Plaintiffs pleaded in paragraph of their Amended Statement of Claim was that their vendors are all members of Olayalo family. That is not enough.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Thomas v. Holder 12 W.A.C.A. 78 at 80: “Where the plaintiff in claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the Court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner.”
⦿ NOTABLE DICTA
A party cannot formulate an issue for determination in the Court of Appeal which is inconsistent with the issues arising from the pleadings in the court below. – Obaseki JSC. Olalere v. Beyioku (1988)
One cannot really talk of acts of ownership without first establishing that ownership. Where a party’s root of title is pleaded as, say a grant, or a sale or conquest etc. that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership. In other words acts of ownership are done because of, and in pursuance to the ownership. Ownership form the quo warranto of these acts as it gives legality to acts which would have otherwise been acts of trespass. – Oputa JSC. Olalere v. Beyioku (1988)
I have, on purpose, dwelt at length with acts of ownership and Ekpo v. Ita supra because our trial Court seem to hold tenaciously to the belief that in every land case, for the plaintiff to succeed, the onus lies on him “to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners “. That is not quite correct. Regard should necessarily be had to the pleadings and the root of title pleaded in each particular case (I am not even sure that pleadings were filed in Ekpo v. Ita). Also in Ekpo v. Ita the Full Court made it clear that “if the evidence of tradition is inconclusive the case must rest on a question of fact”. The decision in Ekpo v. Ita dealing specifically with traditional evidence should be confined to the facts of that case, and that decision, should not be seen as stating a general principle of law binding in every land case. – Oputa JSC. Olalere v. Beyioku (1988)