Colonel Olu Rotimi & Ors V. Mrs F. O. Macgregor & Ors (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A.COKER, JSC.

The present appellants were the defendants in an action instituted against them by the respondent, Mrs. F. O. MacGregor, as plaintiff, in the High Court of Lagos State. The writ in the action was endorsed for the following claims, that is to say – “(a) A declaration of title to that piece or parcel of land situate lying and being at Anifowose Village, Ikeja, Lagos State described in a plan to be filed in this suit; (b) £3,260 special and general damages suffered by the plaintiff from the defendants on 20th day of March, 1970, wrongfully breaking and entering into the plaintiff’s piece or parcel of land situate lying and being at Anifowose Village, Ikeja, Lagos State in the plaintiff’s possession and there damaging the plaintiff’s properties; (c) An injunction against the defendants by themselves their servants and/or agents or otherwise from interfering with the plaintiff’s possession of the said piece or parcel of land.”

The parties duly complied with the orders of court to file pleadings and in due course severally amended their pleadings. By her amended statement of claim, the plaintiff claims to have always been in possession of the land in dispute by herself and her predecessors-in-title; she claimed that the land originally belonged to one Oshoja who died many years ago, one of whose descendants was Iyade and whose descendants eventually sold the piece of land in dispute out of a large whole to one Alhaji Alli Isiba who in turn had sold to her by virtue of an indenture of conveyance dated the 24th September, 1967 and registered as No. 31 at p.31 in Volume 1027 in the Register of Deeds kept in the office in Lagos and confirmed or rectified by a deed of “rectification” dated the 8th July, 1971, from the head and other representatives of the Iyade family. It is also part of the plaintiff’s case that by virtue of an indenture of conveyance dated the 23rd day of February, 1970, and registered as No. 64 at p.64 in Volume 1311 in the Register of Deeds kept in Lagos, and rectified by another deed of rectification dated the 8th April, 1971, and registered as No. 74 at p.74 in Volume 1350 in the Lands Registry Office in Lagos, the said Alhaji Alli Isiba sold and conveyed the said parcel of land to the plaintiff who then immediately went into possession and commenced building operations therein. Paragraph 16 of the plaintiff’s amended statement of claim then avers as follows:-  

“16. That sometime in March 1970, the plaintiff began her building operations on the said land and the said building proceeded up to the damp proof course level when on or about 23rd day of March 1970, the defendants, their servants and/or agents including fully armed soldiers in uniform forcibly broke and entered into the said land in dispute which was in possession of the plaintiff as aforesaid and broke down the plaintiff’s shed, destroyed her cement blocks and other building materials on the said land.”   By their amended statement of defence, the defendants claimed that the land in dispute is but a portion of a large area or tract of land originally belonging to the “Oshoja family (otherwise known as the Iyade Oshoja family ………….)” and that the 1st defendant claims ownership of the said land by virtue of a conveyance dated the 5th day of February, 1965, and registered as No. 46 at p.46 in Volume 814 of the Register of Deeds kept in the Registry Office in Lagos from that family to one Karimu Arubo who then conveyed same to the 1st defendant for an estate in fee simple in possession by virtue of another conveyance dated the 25th day of July, 1969, and registered as No. 47 at p. 47 in Volume 1292 of the Register of Deeds kept in Lagos. Paragraphs 8 and 9 of the statement of defence plead thus:- “8. The defendants will at the trial of this action rely on proceedings and judgment in Supreme Court Suit No. 345/1933 (Odu Abijo & Anor. vs. M. B. Nuru & Ors.).

9. The defendants plead that his predecessors in title were in possession of the land prior to the date when the plaintiff’s predecessor-in-title purported to acquire title to the land or any portion thereof.” Apart from the general traverse appearing at the top of the amended statement of defence, there is no specific pleading in answer to paragraph 16 of the plaintiff’s statement of claim.  

Both parties gave evidence at the trial and in the course of a reserved judgment, the learned trial Judge stated concerning the claim of the plaintiff for declaration of title that- “The plaintiff’s claim for a declaration of title cannot, in my view, succeed. In the course of the address I invited learned counsel on both sides to address me on the matter of non-suit and they did. In my view the plaintiff’s case for a declaration ought not to be dismissed as I think if properly presented, it may be possible for her to present a case that might lead to an order for a declaration of title. I will say no more than that.

I have decided that neither party to this action has established a right to title.” With respect to the claim for damages for trespass, the learned trial Judge concluded that – “I believe that those who had been in possession of the land sold to Isiba and delivered possession to him. I believe that Alhaji Isiba did exercise rights of possession over the land before he sold the portion with which we are here concerned to the plaintiff.

The type of conduct which indicates possession must vary with the type of land. In this case it was originally farmland later sold for building purposes. It was sufficient that fruits were reaped from it originally and later it was cleared and made ready for building. The plaintiff herself has established beyond question that she was in possession of the piece of land in dispute and that they bore the pillars Nos. YS1257, YS1258, YS1259 and YS1261 when on 20th March 1970 the land was trespassed upon and damage caused thereupon.”  

He then considered the implications on the case of the plaintiff vis-a-vis the 1st defendant of Section 161(1)(c) of the Constitution of Nigeria, 1963, and held that as the 1st defendant became the Military Governor of the Western State during the pendency of this case, the action should not have been continued thereafter against him. He however found against the 2nd and 3rd defendants on the head of claim for trespass and awarded against both of them “jointly and severally” an amount of £600 (or N1,200) together with costs.

The learned trial Judge made no order whatsoever in respect of the plaintiff’s claim for injunction, apparently because of his views concerning the constitutional position or status of the 1st defendant. The defendants have appealed against the decision of the High Court to this Court and, on behalf of the plaintiff a notice under Order 7 Rule 13 of the Rules of the Supreme Court was filed indicating that she would contend at the hearing of this appeal that she should have been awarded title to the land in dispute.

Before us on appeal, learned counsel for the defendants argued his appeal under four main grounds as follows:- (i) Plaintiff’s title is void and not just voidable and her claim to title and others should have been dismissed; (ii) Defendants’ title is merely voidable and not void and on that ground plaintiff’s action should have been dismissed; (iii) The defendants in any event were in prior possession of the land in dispute and so the plaintiff’s case should have been dismissed; and (iv) Weight of evidence.

It is apposite at this stage to refer to a point of considerable importance which although not directly canvassed in this Court, as it was in the High Court, yet is of paramount significance in the institution of this case, the parties thereto, the continuance of it and its prosecution to the end and indeed the final judgment on the many issues raised and decided thereby. In the course of his final address to the High Court, Lagos, learned counsel for the defendants for the first time and without at any time pleading it raised the question of the constitutional position of the 1st defendant, who was at that time and until now the Military Governor of the Western State.

Learned counsel submitted before the High Court that by virtue of Section 161(1)(c) of the Constitution of the Federation of Nigeria, 1963, the court could not give any judgment against the 1st defendant, that it was not necessary for him to plead that section of the Constitution which although it purports to confer a private right or privilege to immunity is evidently a matter of public policy embodied in a public act or legislation of which the court is bound to take judicial notice and which could not, by the incumbent of the office concerned, be waived.

We stated earlier on that the learned trial Judge who tried the case considered these submissions. He came to the conclusion that the Constitution of the country is a public act of legislation, that the section concerned involves public policy which the 1st defendant could not waive himself and so declined to make any orders against him. We refer to section 161 of the Nigerian Constitution, 1963, which provides as follows:- “161(1) Without prejudice to the generality of Section 156 of this Constitution – (a) no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and  (b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and