Alhaji Y. A. O. Bello v. The Diocesan synod of Lagos & Ors (1973)

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

The present appellant, Alhaji Y. A. O. Bello, became, in the events that happened, the plaintiff in an action originally instituted by his mother, Madam Ashinmowu Bello, in the High Court, Lagos and in which the writ was originally endorsed as follows:

“The plaintiffs claims against the defendants jointly and severally are (a) 8,000 pounds special and general damages for damage done to the plaintiff’s property at No.1 Edwin Street, Lagos due to the negligence/nuisance of the defendants in the execution of building operations being carried out by the defendants on their land St John’s Aroloya Church adjoining the plaintiff s property.

(b) An injunction restraining the defendant from doing further damage to the plaintiff’s said property.”

The original plaintiff died soon after the filing of some of the pleadings but before the actual trial of the action. The present appellant, who will hereafter in his judgment be referred to as the ‘plaintiff’, took out letters of administration to the estate of his mother and so prosecuted the action in his capacity as the personal representative of Madam Ashimowu Bello (deceased). There were originally three defendants to the action as follows:

(i) The Trustees of the Diocese of Lagos (C.M.S.) Nigeria.

(ii) Messrs Rodio S.C.C. (Nigeria) Ltd.

(iii) Arbico Ltd.

Later in the course of the proceedings, the designation of the 1st defendants was amended to read:

“The Diocesan Synod of Lagos”.

Also in the course of the proceedings and, indeed on the 26th November, 1969 the plaintiff withdrew the case against the 1st defendants and as against them his case was dismissed on that day. In the course of the hearing and during the cross-examination of the plaintiff the High Court ordered the joinder of a further defendant described as follows

“D. A. Cole and M. O. Leigh as representing the Parochial Committee of St. John’s Church, Aroloya, Lagos.”

Previous to this and on the 29th September, 1969 pursuant to an application by learned counsel for the defendants the Lagos Executive Development Board was joined as the 5th defendants to the action. All these defendants, except the 1st, are now the respondents before us and in this judgment they would be referred to as defendants in the order and the signification in which they defended the action. With respect to the Lagos Executive Development Board, we observe that since the hearing of this case the Lagos State Development and Property Corporation Edict No.1 of 1972 had been promulgated as a result of which the Lagos Executive Development Board as such had been dissolved and the Lagos State Development and Property Corporation created to take over its assets and liabilities.

By virtue of section 8 of the Edict No.1 of 1972, the Lagos State Development and Property Corporation now takes over the assets and liabilities of the Lagos Executive Development Board “without further assurance”, and as such and by virtue of the provisions of subsection (3) of section 8, this action therefore enures for and against (as the case may be) the Lagos State Development and Property Corporation so that references to the Lagos Executive Development Board in this judgment shall be taken as references to the Lagos State Developmerit and Property Corporation.