S.M.B Alomasojo Vs Nelly Elsie Ibru (1973)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In Suit No.LD/265/69, Taylor C.J., in the High Court of Lagos State entered judgment on 11th January, 1971 for the plaintiff against the defendant in trespass and dismissed the defendant’s counterclaim for title in fee simple in respect of the land in dispute. On 12th January, 1971, the learned Chief Justice also granted the plaintiff an injunction restraining the defendant, his agents and/or servants from further trespassing on the land.

The plaintiffs claim from the defendant was for the sum of 200pounds as damages for trespass allegedly committed by the latter on the plaintiff’s land known as Plot No. 92, Mr J.A. Daniel’s allotment or 33 Omobola Street, Ikate, Surulere, Lagos; the plaintiff also sought an injunction restraining the defendant and his agents and/or servants from committing further acts of trespass on the land in question. The defendant filed a counterclaim in which he sought a declaration of title to the said land.

The issue for decision was correctly stated thus by the learned trial judge “The facts of the case as presented at the hearing and in the pleadings present no difficulty at all for the matter to be decided in this case and on which the case for both claimant and counter claimant rest is a matter of law. Whilst the plaintiff rests her case on the judgment in Suit No.1/108/55 confirmed on appeal in F.S.C. 85/58, the defendant rests his case on HK/39/62 which on appeal to the Supreme Court was settled in S.C. 293/64.”

The facts of this case are briefly as follows-The plaintiff claimed that she purchased the land in dispute from the representatives of the estate of J. A. Daniel (deceased) who in turn purchased it from the Ajiya family. This family claimed title by an absolute gift of the land from the Onitire Chieftaincy family, and the title under customary law was declared by Taylor,J., as he then was, to have been so granted in Salawu Lawani (on behalf of the Onitire family v. Asimowu Durojaiye (on behalf of the Ajiya family), Suit No. 1/108/55 in the High Court of Western Nigeria at Ikeja. This decision was confirmed on appeal by the Federal Supreme Court in Suit No.F.S.C. 85/58 delivered on 13th November, 1958. The action had been fought on both sides in representative capacities, and so the judgment is binding on both parties to the case and their privies who are parties to the present case.

The defendant claimed title through the Onitire Chieftaincy family as original owners of the land after he had first purchased from a third party (one Biliaminu Oginni), who was probably a squatter, before he was told who the alleged owners were. There was no dispute as to the identity of the land in question: see exhibit A which includes the area in dispute in the present case. But it is necessary at this stage to refer to Suit No. HK/69/60 between Salawu Lawani and Asimowu Durojaiye in which the plaintiff sued the defendant seeking an order to set aside the judgment in Suit No. 1/108/55 on ground of fraud, but the suit was dismissed by Madarikan, J., on 31st July, 1963.

It is also to be noted that neither J. A. Daniel nor his representatives were parties to this action and that his conveyance and title deeds were dated some eight years prior to the date of this judgment. Similarly to be noted is the fact that the plaintiff in the action had purchased the plot in dispute as per exhibit H on 31st October, 1962, though the conveyance to her was made in 1969 as per exhibit J. The plaintiff then appealed to the Supreme Court from the judgment of Madarikan, J., and the following drawn-up order containing the terms of settlement was made

“It is ordered that this appeal be settled on the following terms herein agreed to by the parties-

(1) That the judgment on the counter-claim in Suit No. 1/108/55 instituted ‘Salawu Lawani Bale of Itire representing the Itire family versus Ashimowu Durojaiye representing the Agia family given in the High Court of Western Nigeria on the 3rd January, 1957 be set aside and an order for dismissal of the said counter-claim entered.

(2) That the order for costs in the Court below be set aside.

(3) That the costs of this appeal be costs in the cause.

(4) That these terms of settlement do form the judgment of the Court in this appeal.

Dated the 11th day of November, 1965.”

Since this consent judgment (a) deals only with the 1955 judgment on the counter-claim alone and does not deal with the judgment dismissing the claim to title of the Onitire family, and (b) does not deal with the judgment of the Federal Supreme Court upholding the judgment of the lower court, the learned trial judge held that the plaintiff’s title is derived from that of J. A. Daniel’s which is itself based on the judgment in Suit No. 1/108/55, and which was confirmed on appeal to the Supreme Court in FSC. 85/1958 and that, therefore, the plaintiff “must succeed in the claim which though one for trespass and injunction, presupposes title”.