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CHIEF AKINLOLU OLOTO
V.
T. AKINDELE JOHN
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
19TH DAY OF OCTOBER, 1942
LEX (1942) – WACA PP. 127 – 129
OTHER CITATION(S)
2PLR/1942/14 (WACA)
(1942) VIII WACA PP. 127 – 129
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
CHIEF AKINLOLU OLOTO — Plaintiff-Appellant
AND
T. AKINDELE JOHN — Defendant-Respondent
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REPRESENTATION
E. J. Alex-Taylor with P. Oddie — for Appellant
A. L. Johnson — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Ownership of land — Failure to resume occupation upon abandonment by persons occupying land with owners’ permission — Legal effect on title
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CASE SUMMARY
ORIGINATING FACTS
The plaintiff’s family were the original owners of the land. Subsequently the family permitted people of Ishan to occupy the land. The Ishan people occupied it for a time, and then abandoned the land. The plaintiffs, after the abandonment, did not resume occupation. Some seven or eight years ago the defendant built on the land.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The granting of rights of occupation to the Ishan people did not extinguish ownership. There could be no question of any resumption of ownership, when the right to that interest already existed.
2. The plaintiff was entitled to a declaration that he and his family are the owners of the land in question according to native law and custom.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.
The plaintiff in this case claimed in his writ of Summons a Declaration that he and his family are the owners in fee simple of the land situate at No. 7 Market Street, Ebute Metta, Lagos, which was the subject matter of Suit No. 243/1941-T. Akindele John versus Amodu Tijani Chief Oluwa.
“The plaintiff states this land forms part of the Stool land of the Oloto Chieftaincy and the Oloto family and has not been alienated to any other party.”
Pleadings were ordered and the plaintiff’s very brief Statement of Claim in no way amended the claim as it appeared in the writ of summons. On the writ and pleadings the suit went to trial on die claim as stated in the writ of summons and it was upon that claim that the Court below gave judgment for the defendant.
When the case came before this Court on appeal it was pointed out to appellant’s counsel that there appeared to be in the claim an inconsistency in that the plaintiff sought a declaration that he and his family were “owners in fee simple” of the land in question which “forms part of the Stool land of the Oloto Chieftaincy and the Oloto family.” “Fee Simple” is a concept purely of English law and “Stool Land” is a creature purely of Native law and custom.
Counsel for the appellant agreed in this view and informed the Court that all he asked this Court to give to the plaintiff was a declaration that the plaintiff and his family were owners of the land “according to native law and custom” and not “in fee simple.” Counsel for the respondent was asked by the Court whether this made any difference to his attitude to the Appeal and he replied that it did not, and that he opposed the grant of such a declarations.
The learned Judge in the Court below on the evidence before him made certain important findings of fact with which appellant’s counsel did not quarrel. There appears to be no reason why this Court should not accept these findings of fact. These findings may be shortly stated in the exact words of the learned Judge:-
“There is not the slightest doubt that the plaintiff’s family were the original owners of the land in this area, but it is equally certain that the land in question lies within the area covered by what are known as Glover allotments. These consisted of land placed by the Chief at the disposal of Governor Glover for the use of the Egba Refugees.”
x x x
“The plaintiff’s case is that though the land in dispute forms part of plot No. 82 it was never in fact allotted to any of the Egba Refugees, and that although it was subsequently occupied for an unspecified period by some Ishan people by permission of the Oloto family, it was subsequently abandoned by them and must be taken to have reverted to the original owners.”
x x x
“I am of opinion that the plaintiff’s contention on this point is sound, and I see no reason for not accepting this uncontradicted evidence that this particular plot was never allotted under the Glover settlement scheme, and that he subsequently permitted the Ishan people to occupy it for a time.”
Upon these findings of fact the logical conclusion seems to be a declaration of the plaintiff’s title, but the learned Judge qualified the last of these findings as follows:-
“but there is no satisfactory evidence that the plaintiff’s family have ever effectually resumed ownership of it since these Ishan people left.”
It is difficult to see how this qualification in any way affects the issue as to the plaintiff’s title. By permitting the Ishan people to occupy the land the plaintiff’s family effectually resumed ownership of the land when it was not used by Governor Glover for the purpose for which it had been put at his disposal. In permitting the Ishan people to occupy the land the Oloto family were exercising their rights as owners and not parting with the ownership of the land, so obviously it would be doing violence to logic and language, to suggest that they should have effectual resumed ownership of it since these Ishan people left.”
The findings of fact of the Court below clearly involve that the Oloto family were the titular owners of the land at the date when the defendant built on the land, only some seven or eight years ago. To what extent, if at all, the Courts, either in equity or under native law and custom, will protect the “squatting” possession of the defendant is a question which will arise only if and when the plaintiff seeks to interfere with that possession but it does not arise in this case and it would be improper for this Court to express any views on that hypothetical question in this judgment.
It is enough to say that upon the findings of fact of the Court below which have been quoted it is clear that the plaintiff was entitled to a declaration that he and his family are the owners of the land in question according to native law and custom.
The Appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is directed that, in place thereof, judgment be entered for the plaintiff for a declaration that he and his family are the owners of the land in question under native law and custom. Any costs paid under the judgment of the Court below are to be refunded, and the appellant is awarded the costs of this appeal assessed at thirty-five guineas and costs in the Court below to be taxed.
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