Tort-Trespass on land-Person in
possession-Trespasser with no
title.
In the Court
below the plaintiff sued for
trespass; the defendant claimed
to have purchased the land in
fee simple by conveyance.
The land was
part of a larger area belonging
to someone who died intestate;
his six children and
grandchildren inherited it
jointly. Three of them sold the
plot in dispute to a person,
from whom the plaintiff bought
it and entered into possession.
There had been no partition, nor
did all the heirs authorise the
sale; so the plaintiff's title
was defective.
The defendant
purchased the identical plot
from two of the children, who
gave him a conveyance, claiming
to be acting under a deed of
partition, but the parties to it
were only four out of the six
children; so the defendant's
title was also defective but he
relied on his having a
conveyance to defeat the
plaintiff, who had none.
The trial
judge held that the plaintiff
being in possession was entitled
to maintain a suit in trespass.
The defendant appealed.
Held: The
validity of the defendant's
conveyance was put in issue; but
the grantors purported to convey
a title they did not have; the
plaintiff being in possession of
the land, could maintain a suit
in trespass against him.
Appeal by
defendant: No. :-\601.
J. I.
C. Taylor, with him M.
Adekule, for Appellant.
F. R. A.
Williams for Respondent.
The following
judgment was delivered:
Foster-Sutton, P. The
plaintiff-respondent claimed
damages for trespass which he
alleged had been committed by
the defendant-appellant to land
situate at Kayaoja Village,
Lagos, belonging to the
respondent.
The appellant
admitted entering upon the land
in question, but claimed to have
done so as of right, being the
purchaser in fee simple, as
evidenced by a Deed of
Conveyance dated 14th January,
1950.
The land in
dispute is part of a larger area
of land which was originally
purchased by one Salu Kayaoja,
the Deed of Conveyance being
dated 16th November, 1914. He
died intestate some years ago
leaving six children and
grandchildren. The fact that
they jointly inherited the land
is not controverted.
In the year
1946 three of the children
appointed an agent authorising
him to sell some of the land.
Pursuant to that authority the
agent, on the 30th September,
1946, sold two plots of the land
described as plots No.6 and 7 to
a Madam Oke Ayinke. She in turn
sold plot No.6 to the respondent
on the 16th December, 1946, and
it is that portion of the Jaml
which is the subject of dispute
in this case.
In neither
case was a conveyance executed
and it is admitted that as no
partition of the land had taken
place the sale was defective
because all of the persons
entitled did not join in
authorising ~he agent to sell.
The learned
trial judge found as a fact that
the respondent entered into
possession of the land at the
time he purchased it in
December, 1946.
The
appellant's case is that he
purchased an area of the late
Salu Kayaoja's land, including
the plot alleged to have been
purchased by the respondent,
from [pg
86] two of Kayaoja's
children and he tendered in
evidence a registered Deed of
Conveyance, dated 14th January,
1950, by which the two children
concerned purported to convey
the land to the appellant. They
claimed to be entitled to
execute the conveyance by virtue
of a Deed of Partition under
which they alleged the land was
allocated to them. Examination
of the document, however,
disclosed that only four of the
children had participated in the
execution of the Deed and no
evidence was forthcoming to show
that the remaining two children
interested in the land were in
any sense parties to it. The
evidence is to the contrary.
Indeed, Mr. Moore, the solicitor
responsible for the preparation
of the Deed, gave evidence that
only four persons instructed him
and that the names of the other
two were not mentioned to him.
It follows,
therefore, that the appellant's
title to the land in dispute is
also defective, and his Counsel
on this appeal has not argued to
the contrary. He has, however,
submitted that the appellant's
conveyance is only voidable,
that he is in law the owner in
fee simple of the land until,
what appellant's Counsel has
referred to as the Deed of
Partition, has been set aside,
and that it can only be set
aside at the instance of one or
both of the children who did not
participate in its execution. He
urged that the legal estate was
in the appellant and that the
learned trial Judge, therefore,
erred in holding that the
respondent's possession of the
land entitled him to sustain an
action for trespass against the
appellant.
The appellant
sought to defeat the
respondent's claim by setting up
the Conveyance dated 14th
January, 1950, under which he
claimed to be the owner in fee
simple of the land in dispute.
The validity of that conveyance
was put in issue by the
respondent, and, in my opinion,
the learned trial Judge was
bound to determine the issue so
raised. Once it became clear
that the grantors had
purported, as they did, to
convey a title which they did
not possess, the respondent
being in possession of the land
could successfully maintain an
action for trespass against the
appellant.
It follows
that in my view this appeal
should he dismissed with costs.
de Comarmond, Ag. C.]. I
concur.
Coussey,
].A. I concur.
Appeal
dismissed.
