Jimoh Adekoya Odubeko V. Victor Oladipo Fowler & Anor (1993)

LawGlobal-Hub Lead Judgment Report

ONU. J.S.C.

In the High Court of Lagos State presided over by Oshodi, J. the appellant, who was the plaintiff, caused a writ of summons to issue against the respondents who therein were defendants, for:

“1. Declaration of title in fee simple on a piece or parcel of land situate, lying and being at No. 20 Idera Street, Palmgrove, Mushin West, Lagos State, a site plan of which shall be filed later.

2. N200.00 for general damages for trespass to the said land.
3. Perpetual injunction restraining the defendants, their servants and/or agents from committing further acts of trespass to the said land. Annual rental value is about N20.00”

Pleading were ordered, duly filed and exchanged with the same being further amended by various court orders. The case went to trial with the appellant giving evidence and calling two witnesses whilst the respondents, for their defence, called three witnesses in all. The learned trial Judge gave judgment for the appellant on 8th October, 1982.

Being dissatisfied with the judgment, the respondents appealed to the Court of Appeal sitting in Lagos which unanimously allowed the appeal, set aside the decision of the trial court and dismissed the appellant’s claim.

Aggrieved by the decision, the appellant has further appealed to this Court on five grounds, the last of which is with leave of this Court.

The background facts to the case ought briefly to be stated as follows:

It was common ground that the land belonged originally to Ojomo Eyisha Chieftaincy Family. According to the appellant, the said family in 1910 sold land which included the land in dispute to one Larinde Agba, who in turn sold it to Emmanuel Seton. As a result of Suit No. 169/32 between one Bello Larinde and the said Emmanuel Seton, whereby the latter became a judgment debtor, the whole land of 41,786 acres was sold by auction by order of Court on the 4th of March, 1936. Joseph Adewunmi and Joseph Adebiyi bought the land at the auction sale as per their certificate of purchase (Exhibit’ A’) dated 13th June. 193R. In 1944, the two purchasers sold and conveyed the land by a registered conveyance (Exhibit B), to one Janel Ebun Adesola, also called Mrs. Ebun Adesola Wilson. After the death of Janet Ebun Adesola Wilson, her husband, Ezekiel John Adeyinka Wilson, administered her estate until his death in 1953. After his death, Thomas Wilson and three other persons were appointed administrators of Mrs. Wilson’s Estate by order of Court (Exhibit B) dated 31st March, 1969. The Letters of Administration were tendered as Exhibit C. The appellant maintains that the land in dispute was sold and conveyed to him by the administrators of Mrs. Wilson’s Estate about the year 1970. A deed of conveyance later executed in his favour, was admitted as Exhibit F dated 5th July, 1972. It then transpired that in 1977 when he had prepared his building plans to wit, Exhibit G and was in the process of commencing building operations on the land, the respondents disturbed him and he instructed his solicitors to seek redress in court.

The respondent’s case is that they, are owners of the land in dispute by inheritance from their father, Christopher Kolade Fowler, who died on 2nd December, 1962. They made a statutory declaration of their right to the land on 3rd March, 1967 vide Exhibit M and duly registered same. They asserted that their father was a purchaser for value of the land by virtue of a registered deed of conveyance, the certified true copy of which was tendered as Exhibit L and later, the original instrument received as Exhibit U with both (being the same documents) dated 29/11/43.

The respondents also pleaded and gave evidence of other acts of possession and ownership by their father. These included the erection of a residential house with approved plans on a portion of the plots purchased by him in 1946. That he let parts of the house as well as portions of the vacant land to rent-paying tenants, some of who testified. It was also part of their case that the land in dispute does not form part of the land purchased pursuant to till order of court on 4th March, 1936 alluded to by the appellant. They in addition demonstrated they paid tenement rates to Mushin Town Council since 1971. They also pleaded the Supreme Court decision in SC.165/1968 and pleaded long possession, Limitation Law and equitable defences.

As earlier stated, after hearing, the learned trial judge found in favour of the appellant. The respondents’ appeal against that decision having been upset by the Court of Appeal (hereinafter referred to as the Court below) he has now appealed to this court as herein-before stated.

The parties acting pursuant to the rules of Court exchanged briefs of argument. The appellant in his two briefs of argument, the first which was dated and filed on 18th May, 1988 and the second which was dated and filed on 24th May, 1991, have jointly submitted therein five issues (three in the first and two in the second) thus:

1. Whether the Court of Appeal has the right to introduce extraneous matter into the respondent’s case on which no evidence was adduced in the lower court.
2. Whether the defendant (sic) (respondent (sic) herein) has (sic) adduced sufficient evidence to prove acts of long possession to justify the finding of facts made by the Court of Appeal to enable it allow the appeal and to interfere with the findings of the lower court.
3. Whether the statue (sic) of limitation applied in this case.
4. Whether the long possession ascribed to the defendant (sic) without the knowledge of the plaintiff or his predecessor-in-title can defeat the established title of the plaintiff.
5. Whether the law of Lagos State Limitation can defeat the title of a family without joining all the parties to the action.

The respondents on the other hand in their amended brief dated 16th December, 1991 also submitted three issues as arising in this appeal, to wit:

0.1. Whether or nor the learned Justices of the Court of Appeal were right in not supporting the findings made by the trial Judge having regard to the pleadings and evidence adduced.