Mr. Solana V. Josiah Olubanjo Olusanya & Ors (1975)

LawGlobal-Hub Lead Judgment Report

Parties

1. SOLANA Appellant(s)

AND

1. JOSIAH OLUBANJO OLUSANYA
   2. SUNDAY ADEBAMBO ADEBULE
   3. SAIBU TIYAMIYU OYELAJA Respondent(s)

G. S. SOWEMIMO, J.S.C. 

This appeal is against the judgment of the Lagos State High Court, in which the court granted the claim of the 1st plaintiff to a declaration of title to a property situate at No. 5, Abey Road, off Ikorodu Road, but dismissed the claims for damages for trespass and injunction.

The court also ordered the defendant, now the appellant before us, to give up possession of the said property to the 1st plaintiff.The facts, which are not in dispute and which are set out in the pleadings, are as follows. The original owner of the property in dispute, which for the purpose of the trial in the lower court is demarcated on a plan tendered in evidence and marked yellow, was the late Chief A. O. Thomas.

The 1st plaintiff’s predecessors-in-title bought the property from the Federal Administrator- General (the Administrator of the Estate of A. O.Thomas deceased) under and by virtue of a conveyance dated 1st June, 1955 and registered as No. 70 at page 70 in Volume 11 of the Lagos Land Registry. The 1st plaintiff purchased the property on the 12th December, 1955, the conveyance of which is registered as No. 62, page 62, Volume 21.

The two deeds are Exhibits G & K. In 1957/58 the 1st plaintiff erected a storey building on the piece of land, and the property was let out after completion to several tenants from 1958 till 1971. On the 11th March, 1971, the 2nd and 3rd plaintiffs, who were the tenants then occupying the premises (two flats) at the material time, were ejected therefrom as a result of the execution of a warrant of possession issued at the instance of one A.Y. Ojikutu (now deceased) who claimed to have obtained judgment for possession in respect of the property in Suit SC/55/68.

The defendant, on the other hand, claimed to have purchased this property in February 1970 from Chief A. Y. Ojikutu (deceased) under and by virtue of a deed of conveyance dated 28th September 1970 and registered as No. 36 at page 36 in Volume 1340 – Exhibit F. The defendant’s predecessor-in-title was alleged to have bought the property in 1951 from Chief A. O. Thomas (deceased), but did not obtain a conveyance until after the death of the latter. The conveyance executed in favour of Chief A. Y. Ojikutu is dated 20th July, 1956 and registered as No. 60 at page 60 in Volume 179. Apart from the averment as to how the defendant bought the property, his main defence is contained in the averment in paragraph 3 of the Statement of Defence which reads:-

“The land in dispute was adjudicated upon by the High Court of Lagos in Suit No. 213/68 and later by Supreme Court of Nigeria in Suit No. SC/55/68 and Chief A. Y. Ojikutu was granted title, by the High Court and possession and injunction by the Supreme Court respectively.”

The learned trial Judge in his judgment on the above averment had this to say:

“There is certainly no evidence before me that the disputed land is a portion of the land in the litigation referred to above. The disputed land is shown both in Exhibit F and Exhibit G and not one witness ever said it falls inside the land then claimed by A. O. Karonwi in the plan attached to his conveyance Exhibit H. The land in dispute has pillars LB 5755, KE 1597, C.P. LB 5754 in both Exhibits F and G. At least two of these pillars are in Exhibit H showing them to be clearly outside the area verged “RED” as belonging to A. O. Karonwi. So that not only has the Defendant failed to prove the averment in para. 3 of the Statement of Defence above, but the fact seems to be that the land in dispute here is not part of the land adjudicated upon in Suit IK 213/62 as claimed. On the whole therefore I think that the Plaintiff is entitled to the possession of the property in dispute.”

On the first ground of appeal argued before us, learned counsel for the appellant submitted that the land adjudicated upon in Suit IK 213/62 and on appeal in Suit SC 55/68 was a larger area of land of which the land in dispute in the present appeal forms a portion and therefore that since declaration of title, possession and injunction had been awarded to Chief A. Y. Ojikutu, the predecessor-in-title of the appellant then, by the provision of Section 54 sub-section 2 of the Evidence Law, the court was in error to have granted a declaration of title in favour of the 1st respondent. Section 54 of the Evidence Act Cap. in Volume 2 of the Laws of Nigeria 1958 reads:-

“54(1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.

(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”