Alhaji Abdul Rafiu Olabosunbo Dawodu & Ors V. Alhaji Musibau Majolagbe (2000)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

In the court below, High Court of Justice, Lagos (Coram Silva J.) the appellants as plaintiffs, before that court claimed in a representative capacity against the respondent who was the defendant before the court below as follows:

(1) The plaintiffs, as Head and Principal Members representing the families of MADAM MORIAMO DAWODU (Nee Agoro) and SULE AGORO, claim against the defendant a declaration that they are the owners and persons entitled by devolution to hold, enjoy and deal with as registered proprietors all that piece or parcel of land situate, lying and being at and known as Nos 8, 10 and 12 John Street Lagos which said piece or parcel of land is vested in their ancestors namely SABITIYU AGORO, MORIAMO AGORO (later known as MORIAMO DAWODU Nee Agoro) and SULE AGORO by virtue of a Deed of Indenture dated 30th September, 1941 Land Certificate Title No. LO 0701 at Lagos.
(2) An order of perpetual injunction restraining the defendant his agents, servants and privies and/or any person(s) in that behalf from further trespassing and/or committing acts of trespass on the plaintiff’s said family land.
(3) An order to demolish the foundation and structure already illegally erected and put on the plaintiffs’ land which is the land in dispute and that the defendant should bear the cost of its demolition.
(4) The sum of N1,000,000.00 (one million naira) being special and general damages for the financial loss suffered by the plaintiffs’ family and for the acts of defendant’s trespass.

Pleadings, with the leave of the court, were amended by the parties and exchanged between them. A quick reading of the pleadings settled by the parties shows that title is in issue and that both parties are relying on documents in support of their conflicting contentions of ownership of the landed property. The law is well settled by judicial authorities that once there is a document evidencing the sale of landed property, oral evidence of sale will be excluded and question as to what land was sold has to be resolved by reference to the documents tendered in evidence. See (1) OLAOYE V. BALOGUN (1990) 5 NWLR (PT.148) 24 and (2) ABIODUN & ORS V. ADEHIN (1962) 1 All NLR 500; (1962) 2 SCNLR 305. So whatever may be the contradictions in the oral testimonies of the parties such will not affect the evidential value the documents tendered would attract. Such documents tendered speak absolutely for themselves. Evidence was led by the parties in proof of the various averments in their amended pleadings, and the addresses of their respective counsel were taken by the trial Judge. In a reserved judgment, the trial Judge dismissed, the plaintiffs/appellant’s claim in toto.

In the concluding part of the judgment be held inter alia:

“As regards No. 12 John Street, Lagos, learned counsel submitted that the defendant did not plead anything about No. 12 John Street, Lagos. This is not correct. In his amended statement of defence, the defendant pleaded
in paragraph 2 as follows:-

“This defendant avers that the plaintiffs have nothing to do with the parcel of land now known as No. 12, John Street, Lagos now the subject-matter of this action”.

There is evidence in support of this averment which to a large extent supported by the conveyance Exhibit 7. There is an indication in Exhibit 7 that No. 12 John Street. Lagos was partitioned between Lamina Dabiri and Abiodun Dabiri. Lamina sold his portion to Aromashodu who mortgaged it to Wright Estate. Lamina’s portion of No. 12 John Street, Lagos was eventually sold by Wright Estate to the ancestors of the plaintiffs. The portion of No. 12, John Street. Lagos which belonged to Abiodun Dabiri is the portion which the defendant is said to have started building upon. This has not been seriously challenged by the plaintiff and indeed, it is to a large extent confirmed by the evidence of 1st plaintiff’s witness.

Mr. Talabi cannot be correct when he submitted in effect that the plaintiffs’ claim to title has been made under native law and custom and must therefore be proved by traditional evidence. I agree with Mr. Dawodu that even though the plaintiffs inherited the land from their ancestors, various Deeds of Conveyance and Title documents are available and have been tendered and relied upon. There is accordingly no need for proof by traditional evidence.

From the facts placed before me, I accept that the defendant has not trespassed on Nos 8 and 10, John Street, Lagos. I also accept that the construction work started by the defendant was on the portion of No.12 John Street, Lagos which did not form part of what was sold to the plaintiff’s ancestors.

It is therefore my judgment from the foregoing that the trespass by the defendant has not been proved by the plaintiffs. The part of No 12 John Street, Lagos which was not sold to Agoro family and which does not belong to them is what the defendant is trying to develop.”

Dissatisfied with the said judgment, the plaintiffs/appellants entered a Notice of Appeal which carries five grounds of appeal. The appellants identified two issues which, as set out in their brief of argument, are in the following terms:-
(1) Whether based on the oral or documentary evidence before the trial court, the trial court was right when it held that No. 12 was partitioned into two; i.e. 12 and 12A and that the defendant was building on 12A which portion does not belong to the plaintiffs.
(2) If the finding of the trial court in (1) above is erroneous, whether judgment should not have been entered in favour of the plaintiffs.

The respondent, through his brief of argument raised three issues and they are:-

(1) Whether these plaintiffs are duty bound to identify precisely and clearly the parcel of land the subject-matter of this action and whether it is the duty of these plaintiffs to rely solely on their pleadings and the evidence led in support of same the weakness of the defendant’s case notwithstanding.
(2) Whether paragraphs 6 and 11 of the plaintiff’s amended statement of claim … are in support of the evidence of PWI and PW2…wherein the PW1 stated as follows: