Victoria Ibidun Ojugbele V. Joseph Oriade Olasoji (1982)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

In the High Court of Justice Lagos State (Oluwa, J.) the plaintiff, who is the respondent to the appeal in this court as well as he was respondent in the Federal Court of Appeal from the High Court, claimed as per his amended writ of summons as follows –

“The plaintiff is a lessee of a plot of land situate, lying and being at Aro-Omo layout in Orile Ikeja in the Ikeja District of the Lagos State by virtue of a Lease Agreement entered by the plaintiff and his predecessor-in-title with the owner of the land, Madam Ayinke Banjoko Aro-Omo-Oba in 1962.The Defendant has without the consent or authority of the plaintiff and without any lawful excuse whatsoever, entered upon the said piece of land.

The plaintiff claims from the defendant.

1. 1,000 pounds damages for trespass being committed by the defendant, her servants and or agents upon the said land 1967 up to date.
2. An injunction restraining the defendant, her servants and or agents from continuing the said acts of trespass.
3. Possession of the said plot of land.”

The parties will hereinafter be referred to as appellant and respondent respectively. However, as it has been observed by the Federal Court of Appeal (as per Nnaemeka -Agu, J.C.A.) the claim against possession was rightly struck out.

Now, the facts of this case have been set out in the judgment of the Federal Court of Appeal which is on appeal to this court. The respondent’s (plaintiff’s case was that Bashiru Babatunde Owe) by virtue of a power of attorney, granted to him by Ayinke Banjoko Aro, the only surviving child of Aro-Omo Oba (who was acknowledged by both parties to the dispute as the original owner of the land) leased the land in dispute to one F. O. Amadi in 1963. On the 8th of May, 1972, the aforesaid Ayinke Banjoko Aro revoked the power of attorney.

Meanwhile in 1964 the lessee Amadi with the consent of the Aro Omo-Oba family had sold his leasehold interest to the respondent. The respondent took immediate possession and in 1967 while in possession got an approved plan for a building in respect of the land and he proceeded to erect a foundation thereupon. The appellant, without respondent’s permission, in 1969 trespassed upon the land. This he repeated again in 1972 when this case had been in court.

It is to be noted that the first alleged trespass occurred before the revocation of the power of attorney which I earlier referred to. However, after that revocation, then by a deed of lease which was admitted in evidence as Exhibit L, Ayinke Aro confirmed the original grant made by Babatunde Owe, by making a grant to the present respondent to whom Amadi (who got the grant from Babatunde Owe) had transferred the interest in 1964. This Ayinke Aro did by making the lease for 50 years granted in Exhibit L to commence from 1st January, 1963.

The appellant acknowledged, as I earlier said, Ayinke Aro as the original owner of the land but the appellant’s case was that, same attorney, Bashiru Babatunde Owe, by virtue of the same power of attorney, claimed by the respondent, had in 1966 by a deed of conveyance, Exhibit S, granted the same land to the appellant. This was before the power of attorney was revoked and according to the appellant, Exhibit L which was made by the owner of the land, Ayinke Aro in 1972 was fraudulent and of no effect.

The learned trial Judge in a well considered judgment found that Babatunde Owe exceeded the power conferred upon him by the power of attorney; that the transaction of 1966 was null and that Exhibit L made in 1972 conferred a valid title on the respondent. He therefore found in favour of the respondent. The appeal by the appellant to the Federal in Court of Appeal was dismissed and he has now appealed to this court on grounds of law and fact but the main issues in the appeal as could be gathered from the grounds of appeal and the briefs are –

“(1) Having regard to the fact that Exhibit L was registered on 30th May, 1972, the claim was filed on 24th May, 1972, before the registration of Exhibit L, and notwithstanding the fact that the first Statement of Claim was filed on 5th April, 1973, is Exhibit L not caught by Section 15 of the Land Instruments Registration Law of Lagos State (Cap 64) The appellant relies for his contention on the decision of this court in Patrick Ossai v. Victor Nwajide & Anor. (1975) 4 S.C. 207.

(2) Having regard to all the facts in this case especially the facts on the issue of possession, should the court not have found in favour of the appellant”

These are the two main issues in this case, and they have been adequately covered by the briefs of learned counsel and their submissions before us. To deal with the first issue, it was the contention of Mr. Lardner, learned counsel for the appellant that Exhibit L should not have been ple aded on the authority of Patrick Ossai v. Victor Nwajide (supra). Learned counsel contended that the expression “shall not be pleased” in Section 15 of the Land Instruments Registration Law refers to the date of the commencement of the action itself and not to the date when the pleadings were filed. In this case concluded learned counsel, the cause of action could not arise until the 30th May, 1972, when Exhibit L was registered.

The relevant provision of Section 15 of the Land Instruments Registration Law reads:”S.15 No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered…….”