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ALHADJ BUSARI ADEESO SOLEMAN AND ANOTHER
V.
HANNIBAL JOHNSON
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
21ST DAY OF MAY, 1951
2PLR/1951/54 (WACA)
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OTHER CIATION(S)
2PLR/1951/54 (WACA)
(1951) XIII WACA PP. 213 – 216
LEX (1951) – XIII WACA 213 – 216
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BEFORE THEIR LORDSHIPS:
VERITY, Ag. P.
LEWEY, J.A.
DE COMARMOND, S.P.J.
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BETWEEN:
1. ALHADJ BUSARI ADEESO SOLEMAN
2. ALHADJ NOFIN KADIRI LADEJOBI – Plaintiffs-Appellants
AND
HANNIBAL JOHNSON – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3442
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REPRESENTATION
G. B. A. Coker — for Appellants
O. Coker — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for Declaration of Title based on conveyance by original owners – Prior adverse possession by respondent – Possession inconsistent with any title remaining in the original owners – Reversionary rights of original owners did not arise – Evidence required to establish acquiescence not so high as where original owners granted occupational rights and reserved to themselves a reversionary interest.
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CASE SUMMARY
The appellants were the plaintiffs.
The defendant was the executor of a deceased person to whom the property was conveyed in fee simple in 1901. The deceased remained in undisturbed possession until his death in 1942 and the defendant also remained in undisturbed possession until 1948, when the appellant was granted a conveyance by the original owners, the Oloto family.
The main ground of appeal was that the trial Judge was wrong in holding that the reversionary interest of the Oloto family was extinguished by the adverse possession of the deceased person and his executor, the defendant.
The defendant’s claim was based on an absolute grant, and as the Oloto family never purported to have granted even occupational rights to him, the question of any reversionary interest did not arise. In such circumstances the evidence required to establish acquiescence was less than where the original owners had a reversionary interest.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal dismissed) that:
1. The possession by the defendant and his predecessors was inconsistent with any title in the Oloto family.
2. The adverse possession existed for nearly fifty years, for the last twenty-two of which, at least, the occupiers were exercising such overt acts of ownership as would have provoked the Oloto family to assert their claim to ownership or possession.
3. The question of any reversionary rights did not arise, and, the quantum of evidence required to establish acquiescence was less than where a reversionary right existed.
4. In the circumstances of this case the evidence established acquiescence and the plaintiff’s claim for a declaration of title failed.
The cases of Oshodi v. Balogun & Others (2) and Oshodi v. Imoru & Others (3) were distinguished.
Cases referred to:
(1) Akpan Awo v. Cookey Ganu, 2 N.L.R. 67.
(2) Oshodi v. Balogun & Others, 4 W.A.C.A. 1.
(3) Oshodi v. Imoru & Others, 3 W.A.C.A. 93.
(4) Chief Secretary to the Government v. Fagbaji &, Others. Unreported decision W.A.C.A. judgment of 7th December, 1950.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, AG. P.
This is an appeal from a judgment of Gregg, J., dismissing a claim by the appellants for a declaration of title to certain premises situate at Ebute Metta. The respondent is in possession of the premises as an executor of the will of a deceased person who entered into possession in 1901, under a deed of conveyance from one who then asserted himself to be the owner. The appellant claimed under a deed of conveyance executed in 1948, on behalf of the Oloto Chieftaincy Family who allege, by the present Chief Oloto, that they are the original owners. This was denied by the respondent, and it is not clear from the judgment whether the learned trial Judge found as a fact that the Olotos were the original owners. This is, I think, to be inferred, however, from his holding that the appellant’s claim “through the Oloto Family” is barred by adverse possession and the implied acquiescence of that family.
The principal ground of appeal is that the learned Judge erred in so holding, and in a further ground it is stated that the learned Judge has wrongly held that “the reversionary rights” of the Oloto Family have ceased by reason, as I understand the ground, of his having held that the conveyance of 1901 is valid. The wording of this ground is obscure but that I take to be its meaning. The facts of this case are hardly disputed. The land in question is alleged by the appellants to have formed a portion of the stool lands of the Oloto Family.
This is denied by the respondent but the evidence adduced on his behalf goes no further back than the conveyance of 1901. In that year, however, one Luke, purporting to be the owner in fee simple conveyed to the deceased. There can be no doubt on the evidence that he remained in undisturbed possession from then until his death in 1942, and that the respondent has been in possession ever since. In 1948 the appellants bought under a conveyance from the Oloto Family, but have never obtained possession. It is to be observed, moreover, that they do not in this action seek to recover possession but merely a declaration of title. The endorsement on the writ is strictly speaking insufficient, in that it does not state the nature of the title. The deed of conveyance on which they rely purports to convey an estate in fee simple, by which means no doubt the Oloto Family, whose ownership rests upon native law and custom, purported to confer upon the appellant an absolute title.
The first question to be determined is whether, on the assumption which we must accept, that the Oloto Family were the original owners by native law and custom, their title had been extinguished before they purported to convey it to the appellants in 1948. For at least forty-seven years they had been out of possession; the deceased was in possession until 1942, and at one period at least, he authorised people to tap for palm wine thereon; since 1945 the respondent has let out the land to tenants. At no time during that period did the Oloto Family take any steps to assert their rights. It is indeed a matter for doubt whether the present Chief Oloto knows the land, for although the appellants admit that the land is fenced, the Chief Oloto stated that he often goes there and has seen no fence. Either, therefore, his evidence is false or he is referring to other land. In these circumstances there can be no doubt, in my view, that neither the Oloto Family nor any one claiming through them would be enabled by this Court to recover possession on the principle established in Akpan Awo v. Cookey Gam (1), followed in many cases ever since and approved by the Judicial Committee of the Privy Council in Oshodi v. Balogun & Others (2), in which Their Lordships stated that:-
“It may well be just and equitable … to hold it inequitable to deprive persons of property of which they have held undisputed possession for many years and to decide that the knowledge and acquiescence of the native family who originally owned the land may fairly be presumed.”
As was held by this Court, however, in Oshodi v. Imoru & Others (3):-
”There are two things which must be distinguished. The first acquiescence in occupation over a period which would bar the original overlord from bringing an action for ejectment … and the second, is such acquiescence as would serve to pass the original rights of the overlord to the occupier. Very much more is required to establish the second than the first.”
In these two cases it was held that this second degree of acquiescence had not been established. In Chief Secretary to the Government v. Fagbayi & Others (4), these principles were followed, but it was held that the evidence did establish such acquiescence as served to pass the original rights of the overlord to the occupier.
It is to be observed that in the Oslaotli cases the question at issue was whether or not the reversionary rights of the Oshodi Family had been extinguished, and I think it is important to bear this in mind, for there may be a distinction to be drawn between cases in which it is the reversion that is in question and those in which, like the present, no question of reversion really arises. In the Oshodi cases, as is made clear in the decision of the Judicial Committee, there had been a grant of occupational rights by the original owners and it was upon alienation of the lands in which such rights had been granted that the question of the reversionary rights of the overlord arose. In the present case the facts as presented by the evidence are otherwise, for neither the Oloto Family nor the present occupier allege that there was any grant of the lands in question by the overlords.
The essence of a reversionary interest is that the owner has parted with an estate less than absolute ownership and that upon the termination of that estate it reverts to the owner. It is this position which not only determined the rights of the parties but which, is in my view, the basis of the decisions in the Oshodi cases. It is clear that when the original owners have granted rights of occupation to another, the possession of the other is not adverse possession and the owner’s acquiescence therein is part and parcel of the grant and cannot affect the owner’s reversionary rights. It is only, therefore, when it comes to the owner’s knowledge that the tenant has alienated or is attempting to alienate the land that the question of acquiescence can arise. The owner is not in possession, and has indeed no right to possession and is not concerned, therefore, with the acts of the tenant unless and until he becomes aware that those acts are inconsistent with and, therefore, a denial of the overlord’s rights. That was the position in the Oshodi cases, and it is not surprising to find, therefore, that a considerable amount of evidence is required to prove such acquiescence as would serve to extinguish the reversionary interest of the overlord.
In the present case it is not so. The overlords have at no time granted any rights of occupation to any other person. They were, therefore, entitled to an estate in possession throughout the period, and had they been alive to their interests they must have been aware that a stranger with no claim through them had acquired possession and was exercising acts of ownership in relation to the land tapping palm wine, and letting out the premises to tenants. The possession by the respondent and his predecessors in possession was at no time consistent with the title of the Oloto Family; they neither claimed nor desired any occupational rights from the Oloto Family. Not only, therefore does no question of reversion arise, but also the possession having been adverse to the Oloto Family ab initio it is not such a case as the Oshodi cases in which it can be said that the overlords could only be held to acquiesce if, after notice of an attempt to alienate and so extinguish their reversionary rights, they stood by. In Oshodi v.Imoru & Others (3), for example, it was held that there was no evidence that the overlords had knowledge of a conveyance by their tenants in 1902 until 1933, when a dispute arose amongst the children of the purchaser which led to the publicity of Court proceedings, and those entitled to the reversion took action immediately thereafter. There was longer delay in OslJodi v. Balogu (2), but in that case there were certain circumstances which explained this delay.
The important distinction is, however, that when there has been a grant of occupational rights which disentitle the owners to possession until the termination of those rights, the fact that persons other than themselves are occupying the land does not necessarily put the owners on enquiry for they have granted rights of occupation and user and they will not, in -the ordinary course, be constantly on the alert as to the precise manner or by whom such rights are being exercised, Even if they saw apparent strangers on the land they might be unknown members of the occupant’s family, employees or even sub-tenants to whose presence they might have no objection. The real infringement of the owner’s right would only arise by alienation, and of this they might have no immediate knowledge. It is far otherwise when land upon which no occupational rights have been granted, but into possession of which strangers enter and exercise acts inconsistent with the possession of the owners. Then at once the owner is put upon enquiry, and if for many years he takes no action to assert his rights, not to the reversion but to possession, the considerations which apply as to his acquiescence are- far different, and I think the evidence required to establish such acquiescence as would serve to pass the original rights of the overlord to the occupier is far less than would be required in the case of land over which occupational rights had previously been granted and the reversionary rights only come in question.
In the present case, the adverse possession is for nearly fifty years, for the last twenty-two years of which at least, the occupiers were exercising such overt acts of ownership as would have provoked the owner to action if he desired to assert his own claim to ownership and possession. At no time during that period of fifty years, nor even during the latter period of twenty-two years, did the Oloto Family attempt to assert their rights, nor, in point of fact, have they attempted to do so by resort to the Courts up to the present time. They were content to stand by and eventually, without first establishing their own rights, purported to convey to a third party the burden of so doing. I am satisfied that this course of conduct not only excludes their right to possession on the principle laid down in Cookey Gam‘s case, but also created a position in which it would be inequitable to hold that they are now entitled to rely upon native law and custom to support their claim to any rights of ownership whatever.
Counsel for the appellant suggested, though he did not press, the proposition that, while the appellant was not now entitled to possession, nevertheless, he remained the legal owner, and if at some time in the future he could obtain possession by peaceful means his legal title would enable him to resist any attempt to dispossess him, and on that ground submitted that the declaration he sought should have been granted.
As, in my opinion, his equitable right to such declaration has been completely extinguished, I do not think this ingenious suggestion can be adopted in the present case, but I would add a word of caution. A declaratory judgment is discretionary. It is a form of judgment which should only be granted in circumstances in which the Court is of the opinion that it has come immediate utility. This is a matter upon which it may be necessary for the Court to pronounce its views more fully in a case in which a decision is necessary. In this case I would say no more than that I do not consider the circumstances would, in any event, have justified a declaration which could have been of no avail to the appellant save in the remote and highly speculative circumstances suggested by Counsel. To have granted it at the present time would, in all probability have led to a misconception, probably to further fruitless litigation and possibly to a breach of the peace.
I would therefore dismiss the appeal with costs.
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ARTHUR LEWEY, J.A.
I agree.
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M. DE COMARMOND, S.P.J.
I agree.
Appeal dismissed.
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