Alhaji J. Aromire & Ors Vs J.j. Awoyemi (1972)

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COKER, JSC

This appeal is from a judgment of the High Court, Lagos (George, J.), in a case which the plaintiff (now respondent), had claimed originally against one Alhaji Jubrilla Aromire on a summons endorsed as follows:-

“1. The plaintiff’s claims against the defendant are for the sum of £500 being special and general damages for trespass.

2. Recovery of possession of all that piece or parcel of land situate at Obele Oniwala Court, Awoyemi Compound in the Federal territory of Lagos;

3. An injunction restraining the defendant, his servants and or agents from committing further acts of trespass on the said land. Title is involved.”

Alhaji Jubrilla Aromire is now the 1st appellant before this court. Soon after the filing of the writ, the plaintiff took out a Motion asking for an interim injunction to restrain the defendant, Alhaji Aromire and privies, servants and agents from further trespassing on the land. The defendant then filed a counter-affidavit in which he stated, inter alia, that he was only an agent for one Alhaji Elias who claimed to have owned the said land which he had later sold to one O.J. Mazelli. An order of Interim Injunction was made and pursuant to orders of the High Court, O.J. Mazelli and Alhaji Elias were joined as the 2nd and the 3rd defendants respectively. Before us they are the 2nd and 3rd appellants respectively.

Later, and in the course of the proceedings in the High Court, the plaintiff took out another motion asking the court to order that his surveyor should be allowed to survey the land in dispute for the purpose of preparing a plan in compliance with the order of court for pleadings to be filed. That motion was supported by an affidavit of the plaintiff and paragraphs 8 and 9 of that affidavit, so far as they are pertinent, read as follows:-

“8. That my surveyor informed me and my solicitors that he had been twice on the land but was prevented by Mutairu Salu and Buraimoh Awoyemi from carrying out the survey. 9. That the said Salu and Buraimoh are agents on the land in dispute of the defendants…..”

Apparently, Buraimoh Awoyemi and Hadji Yaya Bakare Faji were put on notice as their names were mentioned in the plaintiff’s affidavit. Both of them thereafter filed counter-affidavits. In the counter-affidavit of Buramoh Awoyemi the following paragraphs, among others, occur:

– “2. That I am the present head of the Awoyemi family of which the plaintiff/appellant is a member and also the Bale of Obele Oniwala Court.

3. That Obele Oniwala Court where the plaintiff and I and over 50 other persons live is vested in 3 families – Imoru, Awoyemi and Faji, from time immemorial as co-owners.

5. That neither I nor the whole of Awoyemi family is a party to the suit which the plaintiff pursues in his personal capacity, without the knowledge and consent of the family.”

Similar renunciations are contained in the counter-affidavit filed by Hadji Yaya Bakare Faji who claimed to be a principal member of the Faji Otun Family. The plaintiff obtained the order for his surveyor to survey the land in dispute and the adjoining lands in the following terms:-

“IT IS HEREBY RULED that the plaintiff’s surveyor be and is hereby authorised to survey not only the land in dispute but also with it the contiguous lands which with the land in dispute originally belonged to the extended family AND THAT the plaintiff should serve on each of those three occupants put on notice with his Statement of Claim and plan so that they will be in a position to know the extent of the plaintiff’s claim.