Pius Amakor V. Benedict Obiefuna (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILIAMS, J.S.C.

This is an appeal from the judgement of the Lagos High Court in Suit No. LD/788/1970 in which the claims of the plaintiff, now appellant, against the defendant, now respondent, for damages for trespass to land, and for an injunction restraining the defendant from further acts of trespass were dismissed.

The plaintiff averred in paragraphs 3 to 7 of his statement of claim as follows:

“3. The land in dispute forms portion of a larger area of land owned from time immemorial by the Ojora Chieftaincy Family of Lagos.

4. In or about March, 1962, a duly authorised agent of the Ojora Chieftaincy Family for a valuable consideration put the plaintiff into peaceable possession of a large area of land of which the land in dispute forms portion.
5. Immediately adjacent to the land in dispute at Ugbowankwo Street, Alayabiagba, the plaintiff caused to be erected a building consisting of 13 rooms.
6. The plaintiff also put up on the land in dispute the foundation of another building about 18 inches high from the ground level surrounded by a corrugated iron-sheet fence.
7. The plaintiff remained in an open and undisturbed possession of the land in dispute from the commencement of his tenancy in March. 1962 right up till the 30th day of August. 1970 when the defendant accompanied by a gang of several other men unlawfully entered the said land, broke down and carried away the corrugated iron-sheet fence and proceeded to demolish part of the plaintiff’s 18 inches high building foundation erected on the said land.”

In his statement of defence. the defendant admitted the averments in paragraph 3 of the statement of claim but denied those in paragraphs 4, 5, 6 and 7. He then averred in paragraphs 7 and 8 of his statement of defence as follows:

“7. The defendant avers that the land in dispute is an integral part of a larger piece of land leased by the Ojora Chieftaincy Family. the owners of the same to the defendant in 1963 and that the plan of the larger piece is as described and delineated on survey plan No. JJ.38/64 filed with an attached to the counter affidavit of the defendant/applicant and that the same was fenced all round.

8. That immediately upon leasing the said parcel of land to the defendant. the Ojora Chieftaincy Family put the defendant into possession of the same and that the defendant has been in peaceable possession from then until he went to the Eastern State consequent upon the Civil War and that he regained the possession of the same upon his return to Lagos.

In support of his claim the plaintiff testified that he has been a tenant of the Ojora Chieftaincy Family on the land in dispute since 1962 and that he was put in possession by one Bale Fakunle (now deceased) to whom he was directed by the Head of the Family. He paid rent of 3:10per annum for the land. After he took possession of the land, he went there regularly. In 1967, he started building on the land. He completed the building in 1968. Nobody disturbed him while he was building on the land. He is still the tenant of the Ojora Chieftaincy family who has not ejected him from the land. He then described what led him to take the present proceedings as follows:

“On the 30th August a friend rang me to say that certain things happened in respect of the land. I immediately went there and there I met seven men including the defendant. I saw those people breaking my foundation. They were also removing the corrugated iron sheets, i.e. the fence. I asked them to stop. I asked them if the Ojora Chieftaincy family sent them. They said I should not come near them, that if I did they would wound me. It was the defendant who told me to keep away otherwise I would be wounded. I then went to Apapa Police Station and I was given two police officers and went back to the spot. After three months, the police advised me to take civil proceedings against the defendant. The defendant now uses the land for building vehicle (lorries) bodies. ”

The plaintiff later gave detailed particulars of the cost the building foundation which he made on the land and of the fence which he erected round the land and then claimed damages as follows:

“The total cost is 336:10 which I claim as special damages. I also claim 663:10 general damages. In all I claim the sum of N31,000 general and special damages.”

One Edward Macaulay (1st P1/W.) who said that he was “the official receiver of rents and profits” for the Ojora Chieftaincy family from 1959-1964, having been so appointed by the Registrar of the High Court, confirmed that the land in dispute, consisting of two plots, was let to the plaintiff by Bale Fakunle who, at the material time, was the Bale in charge of the family land at Alayabiagba Area of Apapa. He further confirmed that to his knowledge the Ojora family did not re-allocate the plots previously allocated to the plaintiff to anybody else.

The acts of demolition complained of by the plaintiff were also confmned by one Suleman Opeaiye (3rd P1/W.), a police photographer, who was sent to the land in dispute after the plaintiff had lodged a complaint at the Apapa Police Station.

In his own testimony, Ajibola Odunsi, the Chief Ojora of Lagos (5th P/W.) denied that the late Bale Fakunle was the Bale in charge of the family land at Alayabiagba. According to this witness, Bale Fakunle was only put in charge of the family lands at Aiyetoro which is adjacent to Alayabiagba, and he (Fakunle), therefore, had not authority to deal with land at Alayabiagba which was under one Bale Awele who also had since died. Chief Ojora stated funher that Bale Awele died before Bale Fakunle and that, since the death of Bale Awele, nobody has been appointed the Bale in charge of Alayabiagba. he also confirmed that when there was a dispute in the Ojora family, Macaulay (1st P1/W.) was appointed by the Court to receive all the rents paid on the family property and that after the dispute was settled, Macaulay paid over all the money he had collected to him. Under cross-examination, Chief Ojora testified further as follows:

“Fakunle was not a member of my family. At no time was he authorised to deal with land at Alayabiagba. Macaulay was not authorised to lease land but only to collect rents.”