O. Solomon & Ors V. A. R. Mogaji & Ors (1982)

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ESO, J.S.C. 

On 13th October, 1982 we dismissed this appeal and reserved the reasons for our action. I now give my reasons for dismissing the appeal.

The facts of this case are germane to the issues canvassed in this appeal. I will therefore set them out, if only concisely. The plaintiffs, who are now the respondents in this court and who will hereinafter be referred to as plaintiffs/respondents, are members of the family of Chief Iposu. One Kadiri Oniga, whose name featured throughout the case, was also a member of the family. In fact, he was the head of that family between 1925 and 1968. He died in 1968. I will come back to Kadiri Oniga presently.

Chief Iposu came about the land in dispute as a result of his having accompanied Chief Kosoko of Lagos to settle at Epe about 1851. Iposu settled on the land in dispute, remained in possession until his death after which his descendants continued in possession.

And now, to Kadari Oniga. This gentleman, as I have said earlier on became the head of the family in 1927 and remained such head until his death in 1968. However, about 1957, there was a complaint against him that he was making a personal claim to the land and that he was exercising a right of ownership over it. Some of the descendants of Iposu challenged this in court, and in an action before Fatayi-Williams, J., (as he then was), the learned Judge declared that all the members of the Iposu family (be they male or female) were entitled to the land. He granted a declaration of title accordingly in favour of all the members of the family as against Kadiri Oniga who was laying personal claim to the land.

Now, it is of great significance that the defendants had knowledge of the judgment of Fatayi-Williams, J., (as he then was) for indeed they, as well as the plaintiffs/respondents, pleaded it. And perhaps it would be convenient at this stage to make reference to the pleadings as they refer to this aforementioned judgment of Fatayi-Williams, J., (as he then was). The plaintiffs/respondents in paragraph 13 of their statement of claim had said –

“13. The plaintiffs will rely on the general historical tracts and various judgments in particular suit Nos. 138/27, IK/96/69 and AB/17/59”.

It is suit AB/17/59 that I am concerned with here, it being the suit wherein Fatayi-Williams, J., (as he then was) gave the decision I have earlier referred to. In a joint statement of defence filed on behalf of all the defendants, except the sixth defendant, who did not appear either to have filed a statement of defence, given evidence or indeed shown much interest in the case, the defendants said in paragraph 11 thereof –

“11. The defendants will contend at the hearing that Suit AB/17/59 is not relevant to the land in dispute and that by the outcome of the judgment in that suit, the plaintiffs are estopped from laying claim to the land in dispute.”

By this pleading I do not think the defendants could claim ignorance of the judgment in AB/17/59 but more importantly is the fact that it was the defendants that tendered this judgment which was admitted as Exhibit C.

At no time did the defendants claim that Oniga sold land to them in his capacity as head of the Iposu family. Their contention throughout was that the land was personally owned by Oniga. They said so in paragraph 8 of their statement of defence-

“8. The whole area marked yellow in the plan attached to the Statement of Claim was the undisputed land and possessed by Chief Kadiri Oniga as confirmed in the judgment in Suit No. 138/27 being relied upon by the plaintiffs.”

The suit (that is, No. 138/27) was not tendered throughout the trial by either party, and there was no evidence to support the contention of the defendants. In any events, the onus lies on the defendants who pleaded the suit to have produced it. And so the learned trial Judge (Adeoba J.), though he refused to grant the plaintiffs/respondents a declaration of title and also although he struck out the claim for possession, found the defendants liable in trespass and awarded damages against them. He also granted an injunction against them.

The defendants appealed to the Federal Court of Appeal (Ogunkeye, Coker and Okagbue JJ.C.A.), and in a lucid judgment of that court delivered by Coker J.C.A., the court dismissed the appeal of the defendants. The learned Justice of Appeal said –