Alhaji Arafat Akibu & Ors Vs Shedrifatu Azeez (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, JSC.

The original Plaintiff, Taofik Aremu Azeez, now deceased but whose substitutes are the Respondents in this appeal, by a writ of summons issued on 13th June 1978 sued Alhaji A. W. Akibu, now deceased and Alhaja Mutaitu Adunni Akibu, as 1st and 2nd Defendants respectively claiming –

“(1) A declaration that the Plaintiff is the owner of the piece or parcel of land situate lying and being at Apesin Street, Idi-Araba, Surulere, Lagos covered by a Deed of Conveyance dated the 16th day of June, 1977 and registered as No. 68 at 8 in volume 1720 of the Register of Deeds kept at the Lands Registry, Lagos and the person entitled to the statutory right of occupancy in respect of same.

(2) N1,000 as damages for trespass committed by the 1st and 2nd defendants against the plaintiff in respect of the said land between the months of April and June, 1978.

(3) An Injunction restraining the 1st and 2nd Defendants their servants or agents from committing further acts of trespass against the plaintiff in respect of the said land.”

Pleadings were filed and exchanged and subsequently, with leave of court, amended. The Plaintiff filed a reply to the defendants’ statement of defence. The action proceeded to trial at which evidence was led on both sides and after addresses by their respective counsel, the trial judge, Desalu J, in a reserved judgment, found for the plaintiff and entered judgment in his favour in the following terms with costs:

“(i) for a declaration the Plaintiff is the party entitled to a statutory right of occupancy in respect of all that piece or parcel of land situate lying and being at APESIN STREET, IDI-ARABA, SURULERE, LAGOS STATE and covered by deed of conveyance EXHIBIT ‘A’ as delineated by the plan attached thereto and which land is edged RED on the composite plan EXHIBIT ‘D’EXCEPT a small portion to the south-east thereof bounded by Pillars Nos. CP. 24; KD 295; KD 294; KD 293 and CP 59.

(ii) for N50.00 general damages for TRESPASS against the 1st Defendant and

(iii) for an INJUNCTION restraining the 1st and 2nd Defendants, their servants or agents from committing further acts of trespass on the said land for the Plaintiff.”

Being dissatisfied with the said judgment, the 2 Defendants appealed unsuccessfully to the Court of Appeal.

In the course of the proceedings in the Court of Appeal the 1st Defendant died and was by order of that Court, substituted by Alhaji Abdul Razaq Laguda. During the pendency of the appeal in this Court both the Plaintiff and Alhaji Laguda died and were, by orders of court, substituted by Sherifatu Azeez and Munira Azeez for the deceased Plaintiff, Taofik Aremu and Alhaji Arafat Akibu, Alhaji Surajudeen Akibu and Alhaji Surajudeen Yinusa Davies for the deceased Alhaj Abdul Razaq Laguda. The Present parties to this appeal are as indicated in the caption above.

Following the dismissal by the Court of Appeal of their appeal to that Court, Alhaji Laguda and Alhaja Akibu appealed further to this Court, having obtained the leave of this Court to appeal. In their amended notice of appeal the appellants relied on 11 grounds of appeal. In their Appellants’ Brief of Argument, however, they set out three issues as calling for determination in this appeal, to wit:

“1. Whether the lower Court was not wrong in holding that for the appellants to successfully rely on the defence under the Limitation Law, laches and acquiescence, their open possession must be something of which the adverse parties were aware of?

Whether the respondent’s claim of title to the land was not broken and defective having purportedly obtained his title from Administrators of the Estate of his predecessor-in-title who obtained Letters of Administration in respect of only the predecessor’s personal estate and not real estate?