Sunkanmi Dairo & Ors V. The Registered Trustees of the Anglican (2002)

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PIUS OLAYIWOLA ADEREMI, J.C.A.

In the court below, High Court of Lagos State, Ikeja Judicial Division (Coram Adeyinka J.) the Respondent/Cross-Appellant herein who was the plaintiff in that court by the amended writ of summons dated 7/4/89 claimed against the appellant herein who were the defendants the following reliefs:

(1) The sum of N1, 000.00 being special and general damages for trespass committed by the defendants on the plaintiff’s land lying and situate at IWAYA Lagos State of Nigeria which said piece or parcel of land is covered by a Deed of Conveyance dated the 30th of June, 1948 and Registered as at Page 42 in Volume 776 of the Register of Deeds kept in the Lands Registry, Lagos;

(2) Injunction restraining the defendant’s servants and/or agents from committing acts of trespass on the said land.

It is necessary here to say that the respondent/cross appellant initially took out the writ of summons against the 1st – 6th defendants/appellants. The 7th defendant/appellant, claiming to be the overlord of the 1st – 6th defendants/appellants voluntarily applied to be joined and he was joined as the 7th defendant by the order of the Court on 30/11/88. Perhaps I should further say that the original six defendants were separately sued by the plaintiff/cross-appellant but all the cases were consolidated by court order made on 4/7/86. It is also to be noted that the 1st defendant/appellant was substituted for Jethro Dairo – the original first defendant – upon his death while the 5th and 6th defendants/appellants were substituted for M.F. I Megbuwawon and Ogunmayin – the original fifth and sixth defendants upon their respective death.

The final pleadings, filed with the leave of court, and exchanged between the parties are the further amended statement of claim dated 17/4/98, an amended statement of defence of the 1st defendant dated 27/3/96, an amended statement of defence of the 2nd defendant dated 7/11/86, the amended statement of defence of the 3rd defendant dated 7/11/86, an amended statement of defence of the 4th defendant dated 7/11/95 the 5th defendant’s amended statement of defence dated 3/10/95, the 6th defendant’s amended statement of defence dated 3/10/95 and the 7th defendant’s amended statement of defence dated 11/7/94. As I have earlier, pointed out, all the cases were later consolidated by the order of court made on 4/7/86. All sides thereafter called evidence to substantiate the different averments in their respective pleadings. After taking the addresses of counsel the learned trial judgment, in a reserved judgment delivered on the 5th of March, 1998, found for the plaintiff/respondent/cross-appellant. In coming to the conclusion reached the learned trial judge held inter alia.

“The devolution of plaintiffs title from Chief Alase of Iddo to the plaintiffs are as per Exhibits p1 – p10. However, there are breaks in the claim of plaintiffs’ title. The deed of conveyance of 31/3/1877 and registered as 39/133/24 produced in evidence as Ex p9. When, however, James Adeniyi John bought land from James Leigh, no conveyance was executed in favour of James Adeniyi John which was a fatal break on plaintiffs’ claim of title. The Will of James Adeniyi John dated 18/2/43 by which he devised his to his two children was also not produced in evidence. There was also no conveyance executed by Otepola’s children to Mr. Idowu……… The measure of the 20 years age of a deed of conveyance is not at the date of the proceedings but as at the date of the contract in which the deed of conveyance is sought to be relied upon. There was no evidence in the instant case of a contract or contracts from which plaintiffs deed’s conveyance from 1864 or EX P7 derived. The presumption of Sections 123 and 130 of the Evidence Act does not apply to plaintiff’s case. It follows that the defendants are at liberty to challenge the contents of plaintiff’s deed of conveyance Exhibits p1- p10. In view of the break in plaintiff’s claim of title, the plaintiffs have failed to prove their title to the land in dispute.

“I believe the 1st P/W, Chief G. O. Sodipo that the plaintiffs took possession of the land in dispute in 1948, planted mango, pineapples and other crops thereon and completed the St. Francis Church in 1950 and that the Anglican Churches in Lagos used to go and hold revivals and pricious on the land in dispute. It follows that the plaintiffs had exclusive possession of the land in dispute from 1948 untill the defendants moved on the land in 1954. In view of my findings of proofs by the plaintiffs of the identity and their exclusive possession of the land in dispute, I hold that the 1st, 3rd, 4th, 5th and 6th defendants had trespassed on the parcel of land situate at St. Francis Church Compound, Iwaya, Yaba. …………

The fact that contravention notice was served on the Church is no proof that the fence was demolished by the Government. The onus was however, not on the defendants to call the Lagos State Government as a witness that the Government demolished the fence because it was blocking Onifuere Street, Iwaya as per the Contravention Notice Exhibit D59. The defendants having pleaded the Contravention Notice in their various amended statements of defence, the burden was on the plaintiffs to subpoena the Lagos State Government to come and testify that inspite of the Contravention Notice dated 27/9/82, the state Government did not demolish the fence. Although the defendants admitted that the fence was demolished the plaintiffs have failed to prove that it was demolished by the defendants. Plaintiffs’ claim for N10, 000.00 special damages fails and is hereby dismissed.

Plaintiffs, claim for N1, 000.00 general damages also fails and is hereby dismissed.

Plaintiffs’ 2nd claim is for an injunction restraining the defendants from further acts of trespass. Although the plaintiffs’ case for title fails the Supreme Court has held that claim for trespass and injunction can succeed where claim for title to land fails if possession is found in the plaintiff…………. In view of the Success of the plaintiffs’ claim for trespass, their claim for injunction succeeds. An order of perpetual injunction is hereby made and the 1st, 3rd, 4th, 5th and 6th defendants, their servants, agents and privies are hereby restrained from going on and/or from committing further acts of trespass on the parcel of land known and situate at St. Francis C.M.S. Church Compound, Iwaya, Yaba, Lagos State were particularly delineated in the composite plan No.G.F/1454 dated 24th September, 1992 EX P11 prepared by Licensed Surveyor G. F. Okusanya.”

It is against this judgment that the defendants have now appealed to this court. The plaintiff, also being dissatisfied with that portion of the judgment that says that the (plaintiffs have failed to prove their title to the land in dispute, have cross-appealed to this court. The Amended Notice of Appeal of the appellants which was filed with the leave of this Court carries eight grounds. While the Notice of Cross-Appeal of the cross-appellant has incorporated into it two grounds.

In the joint brief of argument filed on 6th June, 2000 on behalf of the 1st, 4th, 5th and 6th defendants/appellants the issues for determination were identified as follows:

(1) Whether the plaintiff, though unregistered, had juristic personality to sue and maintain the action as “The Registered Trustees of the Anglican Diocese of Lagos and if not, whether the judgment given thereof in favour of the plaintiff is not a nullity?