M. Ade Kasunmu & Anor Vs Madam Saudatu Abeo (1972)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C.

The present appellants were the 1st and the 4th defendants respectively in an action instituted in the High Court, Lagos, by the respondent, (as plaintiff). The Writ of Summons is endorsed as follows;-

“The plaintiff claims from the 1st, 2nd, 3rd and 4th defendants jointly and severally the sum of Six Hundred Pounds (600pds) damages for trespass committed by the 1st, 2nd, 3rd and 4th defendants on the plaintiff’s land and building situate lying and being at No. 141, Brickfield Road, Ebute-Metta on the 2nd day of December, 1967, and injunction restraining the 1st, 2nd, 3rd and 4th defendants, their agents and/or servants from committing any further acts of trespass to the said land with the building thereon.”

In due course the plaintiff filed a Statement of Claim in which she described the land in dispute as being “and situate at no. 141, Brickfield Road, Apapa  in the mainland of Lagos” and avers as her root of title that –
“On the 14th day of January, 1927 one Abudu Emiabata as owner in possession sold the land to Barakatu Ajiwun and put her in possession.”

The Statement of Claim then avers that in 1930 Barakatu Ajiwun sold the land to her own mother, Madam Barikisu Animashawun and executed in 1946 a conveyance of the land for an estate “in fee simple” in favour of her own mother; that her mother at her death in 1957 devised the said property to her by her lst Will and Testament, that one Gabriel Laja first trespassed on the land, that one Dr. Esin did the same thing, that she successfully took legal action against both Gabriel Laja and Dr. Esin and that now the defendants had unlawfully broken and entered upon the said land. On the other hand, the Statement of Defence filed on behalf of the 1st and the 4th defendants, now appellants, avers that the 4th defendant (or 2nd appellant) was only an agent of the 1st defendant (now 1st appellant), that the land the subject-matter of the action originally belonged to the Oloto Chieftaincy Family, that the land and the buildings thereon were owned and occupied by one Gabriel O. Laja who had purchased the land from vendors holding a conveyance dated as far back as 1897 and that the defendants had since got their title ratified by the Oloto Chieftaincy Family and in particular that the defendants are not in trespass. The Statement of Defence finally pleads “all legal and equitable defences”.

At the trial there was a large body of evidence. The parties gave evidence in support of their respective pleadings and in particular the following are some of the documents produced by or on behalf of the plaintiff:-

(i)     Plan of the land in dispute admitted in evidence as Exhibit “A”;

(ii)    Indenture of conveyance dated the 21st November, 1946, from Ajiwun to Barikisu Animashawun alias Barikisu Jegede (i.e. plaintiff’s mother). This was admitted in evidence as Exhibit “B”. In this conveyance Exhibit “B”, the recital describing the radical title reads as follows:-

“WHEREAS one ABUDU EMIABATA being then seised of or otherwise well and truly entitled to the hereditaments hereinafter described and intended to be hereby granted did on the 4th of January, 1927, sell the same to the said vendor for the sum of (40) forty pounds sterling as is evidenced by a purchase receipt bearing same date.”;

(iii)    Judgment of Maxwell, J., dated the 15th June, 1927, in inter-pleader  proceedings No. 3148 in the then Supreme Court of Nigeria, awarding judgment of possession of the premises to Madam Barakatu Ajiwun the vendor to plaintiff’s mother. This was admitted in evidence as Exhibit “C”;

(iv)   Probate and will of the late Madam Barikisu Animashawun plaintiff’s mother, showing the devise to the plaintiff. This was admitted as Exhibit “D”;

(v)    Vesting deed executed by the executors of Madam Barikisu Animashawun in favour of the plaintiff, admitted in evidence Exhibit “E”;

(vi)   Judgment of Onyeama, J., in Suit No. LD/26/60 entitled Saudatu Abeo v. Gabriel O. Laja and Alhaji M. Ade Kasunmu.
The judgment is dated the 20th July, 1965, and it non-suits the plaintiff in respect of her claims therein for a declaration of tittle to this same land and recovery of possession thereof. This judgment was produced and admitted in evidence as Exhibit “F”;

(vii)   Judgment of Omololu, J., dated the 4th December, 1964, in Suit No. LD/102/64 (High Court, Lagos) entitled Saudatu Abeo v. Dr. Esin A. Esin, awarding judgment in  favour of the plaintiff against the defendant therein for declaration of title to and recovery of possession of the land in dispute. This judgment was admitted in  evidence as Exhibit “G”;