Mohammed Orogan & Ors. V. Revd. J. O. E. Soremekun & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal came up for hearing on Monday, the 29th day of September, 1986 and after hearing Mr. Oluwole Aina, learned counsel for the appellants and giving a careful study to the briefs of argument filed by the parties, I found the appeal totally devoid of merit.

I therefore, without calling on Mr. H. A. Lardner, SAN. , the learned counsel for the respondents to reply to the oral submission of learned counsel for the appellants, dismissed the appeal with N300.00 costs to the respondents and reserved my Reasons for the Judgment till today. I now proceed to give the reasons.

The proceedings leading to this appeal were commenced on the 5th day of April, 1976 in the former High Court of Justice of Western State of Nigeria, Abeokuta Judicial Division. Pleadings were ordered on the 17th day of May, 1976 and the case was adjourned to 6th December, 1976 for mention.

Before that date, Ogun State was created and carved out of the former Western State of Nigeria. Abeokuta Judicial Division then became part of the area of jurisdiction of the High Court of Justice of Ogun State of Nigeria. In that court, the claim filed by the respondents as plaintiffs against the appellants as defendants reads as follows:

“The plaintiffs’ claim against the defendants jointly and severally are:

1. Declaration of the leasehold title to a piece or parcel of land situate and lying at Adatan. Abeokuta containing an area of land of approximately 70.091 acres;
2. N200.00 damages for trespass committed by the defendants in going into the land to make a layout of the land and also to erect structures such as sheds and building foundation without the knowledge and consent of the plaintiffs;
3. Injunction to restrain the defendants from committing further acts of trespass on the land;
4. An order that the purported sale of portions of the land by the 1st, 2nd, 3rd, 4th and 5th defendants to the 6th, 7th and 8th defendants is void ab initio and should be set aside.”

Pleadings were filed and delivered and at the close of pleadings, the matter came up for trial before Odunsi, J. After hearing evidence of witnesses who testified both at the instance of the plaintiffs and at the instance of the defendants, the learned trial judge delivered a well considered judgment wherein he struck out of the action the names of the 7th and 8th defendants as the plaintiffs could not trace them, dismissed the claims against the 2nd defendant and as against the 3rd, 4th, 5th and 6th defendants (the 1st defendant having died during the proceedings without substitution), entered judgment in favour of the plaintiffs in respect of the claims for declaration of title, damages for trespass and order of injunction. In particular, the learned trial judge said in the concluding paragraphs of his judgment:

“In my judgment, the 1st. 2nd and 3rd plaintiffs as 3 of the Trustees of the Methodist Church of Nigeria named in the Certificate of Incorporation (Exhibit D) are entitled to the declaration which they seek….The Orogan family had no land which they could sell to the 6th defendant or indeed to any other person in the area verged Red in Exhibit C. Nemo dat quod non habet. The entry of the 3rd, 4th, 5th and 6th defendants into the portion of the land constituted therefore an act of trespass for which the plaintiffs are entitled to damages.

The plaintiffs are entitled to an injunction to protect their possession. The claim for an order that sales made by the Orogan family are void ab initio and should be set aside; in my view, damages in trespass and an order of perpetual injunction are the remedies in the circumstances. Judgment is therefore entered as follows:-

1. The plaintiffs are entitled to a right of occupancy in respect of that piece of land situate at Adatan, Asero, Abeokuta, Ogun State of Nigeria edged Red in plan No. AK.71/10 drawn by Licenced Surveyor D.O. Akingbogun and marked Exhibit H in these proceedings but excluding the area verged green in the said plan.
2. N250.00 damages against the 3rd, 4th, 5th and 6th defendants jointly and severally for trespass.
3. An order of perpetual injunction restraining the 3rd, 4th, 5th and 6th defendants, their servants, agents or anyone claiming through them from committing any further acts of trespass on the land.
4. The claim against the 2nd defendant is dismissed.”

The appellants were naturally dissatisfied with the decision of Odunsi, J. and therefore took the matter on appeal to the Court of Appeal. Two grounds of appeal were filed with the notice of appeal. One complained that

“The decision of the learned trial judge is against the weight of evidence”

and the other complained

“That the costs awarded against the appellants is excessive.”

The costs awarded against the 3rd, 4th, 5th and 6th defendants who are now