Ayorinde V. Kuforiji (2022)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

The undisputed fact is that on 11th September, 1954, the three Kuforiji brothers, namely: Samuel Abraham Kuforiji, Herbert Frederick Afolabi Kuforiji and Hezekiah Christopher Olajide Kuforiji, jointly and as joint owners to the exclusion of their other brothers and cousins, executed a deed of lease (Exhibit B) wherein, upon valuable consideration, demised the disputed land to the Foreign Mission Board of Southern Baptist Convention (hereinafter called the Baptist Mission) for 99 years (i.e. up to the year 2053). The Respondent, as the defendant at the trial Court, specifically admitted this fact, in the Amended Statement of Defence and the counter-claim. In paragraph thereof the defendant averred:

20. By a Lease made on 11th September, 1954 and registered as No. 9 at page 9 in volume 92 of the Lands Registry in the office at Ibadan now kept at Abeokuta the land in dispute was demised to the Baptist Mission for the term of 99 years at the reserved rent of £16.5s (Sixteen Pounds, Five Shillings) by Messrs Samuel Abraham Kuforiji (deceased), Herbert Federick Afolabi Kuforiji (deceased) and Hezekiah Christopher Olajide Kuforiji (deceased).

He further averred that the said Baptist Mission, pursuant to the lease, had “put Rev. (Dr.) James Tanimola Ayorinde (deceased) then the servant of the Baptist Mission into possession of the land in dispute.”

The defendant had earlier, in paragraph 19 of the Amended Statement of Defence and counter-claim, averred that he, as the counter-claimant-

– is the owner of the land in dispute together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession

of the disputed land. This is inspite of the joint ownership of the same land vesting jointly in the three Kuforiji brothers, including his father Hezekiah Christopher Olajide Kuforiji, pleaded later in paragraph 20 thereof. The defendant did not give further particulars as to how the joint ownership of the land in dispute which was jointly demised to the Baptist Mission in 1954 by the three joint owners, including his father, H.C.O. Kuforiji (deceased), eventually metamorphosed to the sole ownership of the H.C.O. Kuforiji (deceased) and devolving to him as “the owner – together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased).” It is on this basis the defendant counter-claimed for possession of the disputed land and “mesne profit at the rate N50,000.00 per year from 11th November, 1992 when the lease was determined until the plaintiff delivers possession thereof to the defendant”. The defendant did not bring his counter-claim in any representative capacity.

The survey plan of the disputed land is Exhibit A. The undisputed 1954 lease between the three Kuforiji brothers, as joint owners/lessors, and the Baptist Mission is Exhibit B.

The Appellant, as the plaintiff and a nephew of Rev. (Dr,) J. T. Ayorinde, had averred that “by Deed of Surrender dated the 29th day of May, 1974 and registered as No. 33 at page 33 in volume 503 of the Lands Registry in the office at Ibadan now kept in Abeokuta, the Foreign Mission Board of the Southern Baptist Convention surrendered their unexpired term to the late Pa Rev. (Dr.) J. T. Ayorinde in respect of the land in dispute -”. The said Deed of surrender is Exhibit C in the proceedings.

​Exhibit D is the Deed of Conveyance dated 1st May, 1973 executed in favour of Rev. (Dr.) J. T. Ayorinde by Chief Jonathan Kuforiji and Chief Simeon Olujinmi Kuforiji for themselves and on behalf of Kuforiji Family Council of Kemta, Abeokuta. It was registered at Land Registry as No. 22 at page 22 in Volume 1446. The plaintiff alleged that by the said Deed of Conveyance the reversionary interest in the land in dispute was conveyed to his uncle, the late Rev. (Dr.) J. T. Ayorinde and that upon the latter taking “absolute possession” of the disputed land, he (the plaintiff) moved into the disputed land and stayed with the Rev. (Dr.) J. T. Ayorinde who was a brother of the same blood with his (the Plaintiff’s) father, Emmanuel Bolaji Ayorinde.

​The defendant did join issues with the plaintiff’s assertion, pleaded in paragraph 10 of the Statement of Claim that his grandfather, Ayorinde, begat two children, that — his father Emmanuel Bolaji Ayorinde and Rev. (Dr.) J. T. Ayorinde. This fact of Emmauel Bolaji Ayorinde and Rev. (Dr.) J. T. Ayorinde being brothers of full blood is not in dispute. Also not disputed is the fact that the plaintiff, the son of Emmanuel Bolaji Ayorinde is a nephew of Rev, (Dr.) J. T. Ayorinde who died intestate and without issue on 5th March, 1977. The wife of Rev. (Dr.) J. T. Ayorinde died on 10th August, 1996, also intestate without an issue. She was buried on 14th September, 1996.

​What appears to be the immediate cause of action is the fact averred in paragraph 20 of the Statement of Claim; that is, that on 15th September, 1996, just a day after the burial of Mrs. Ayorinde “the defendant came to the land in dispute with over 40 hefty men suspected to be thugs to damage the gates, the poultry farm” put in place on the land by the plaintiff several years previously. The plaintiff further avers that in 1987 he had built a block of shops on the disputed land and had put in tenants without any interference or disturbance from the defendant. On these facts, the plaintiff claimed against the defendant that he be declared the person entitled to the statutory right of occupancy over the disputed land. He also claimed N100,000.00 as general damages for trespass and N100,000.00 as special and general damages for the killing of poultry birds, malicious damage to his walls and crops on the land; and an order of perpetual injunction restraining the defendant from further acts of trespass.

The plaintiff did not obtain Letters of Administration. This appeal is against the findings of the trial Court, affirmed by the lower Court, to wit;

1. the plaintiff did not have locus standi to maintain his suit based on his claim that he was entitled to inherit the intestate realm of the late Rev. (Dr.) J. T. Ayorinde, his uncle.
2. the disputed land did not properly vest in late Rev, (Dr.) J. T. Ayorinde and that Exhibits C & D did not vest the land in dispute on the late Rev. (Dr.) J. T. Ayorinde,
3. the late Rev. (Dr.) Ayorinde having gone through Christian marriage, in his lifetime, “his estate was not governed by customary law but the general law”; and
4. having held that Exhibits C & D did not convey confer any title on Rev. (Dr.) J, T. Ayorinde the trial Court was not bound to apply Section 49(1) of the Administration of Estate law of Ogun State, and that this law is not applicable to this case.

​The plaintiff’s suit, dismissed in its entirety by the trial Court, was affirmed partly by the lower Court. The lower Court only affirmed part of the award in favour of the defendant in respect of the counter-claim. That is; the judgment of the trial Court declaring the defendant “as the beneficial possessor of the land in dispute.” The trial Court’s award of N30.00 per square meter, as mesne profit, from November, 1992 in favour of the defendant was set aside. Only the plaintiff has further appealed. The defendant did not appeal the decision of the lower Court. The Appellant has 9 grounds of appeal challenging the decision.

The Respondent, vide a purported Notice of Preliminary Objection, submits that grounds 1, 4, 5 and 7 of the Further Amended Notice of Appeal are incompetent and should be struck out. The purported Notice of Preliminary Objection clearly concedes that other grounds of appeal, namely: 2, 3, 6, 8 & 9, sustain the appeal. In the circumstance the procedure of Notice of Preliminary Objection under Order 2 Rule 9(1) of the extant Rules of this Court is not appropriate. As Rhodes-Vivour, JSC stated in ISAH v. INEC & ORS. (2014) 1-2 SC (pt. iv) 101-