Alhaja Olayide Ayinde (Nee Olaiya) & Ors V. Mrs. Mercy Olulola Olaniyan & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A. 

This is an appeal against the Judgment of the Hon. Justice Bode Rhodes Vivour sitting at the High Court of Lagos State delivered on 26/5/2000, The Learned trial Judge (as he then was) entered judgment for declaration, injunction and damages for trespass in favour of the Respondents against the Appellants. The Respondents had claimed in their Amended Writ of Summons dated 23/5/99, at page 145 as follows:
1. A Declaration that the Plaintiffs are entitled to statutory right of occupancy in respect of those pieces or parcel of Land situate lying and being at onike village, yaba Lagos.
2. N500.00 (Five Hundred Naira) in favour of each plaintiff being special and general damages against the Defendant jointly and severally their servants and/or agents for trespass committed by the Defendants on the plaintiffs Land (in Plaintiffs possession) situate lying and being at onike lwaya village, Yaba, Lagos and which Land is more particularly shown and edged red on the plan No. 85/64 ASA dated the 23rd March, 1964 and annexed to a Deed of conveyance dated 4th August 1964 and registered as No. 38 at page 38

1

in volume 1227 of the Registrar of Deeds kept at the Lagos Land Registry,
3. An order of perpetual injunction restraining the Defendants by themselves, their servants and/or agent and privies or otherwise from committing further acts of trespass on the said Land.

The brief summary of this case is as follows:
The Respondents’ case was that Joseph Adelola Olaniyan (Deceased), the Respondents’ predecessor-in-title, was the owner of the land in dispute, having bought same from the Oloto of Oto. The Respondent stated that since Joseph Adelola olaniyan bought the property in 1964 up to 1982 when he died, he was in undisturbed occupation of the land. They claimed that sometime in 1982 the Defendants/Appellants trespassed on the land. The Appellants’ case as can be gleaned from their 6th Amended Statement of Defence dated 8/7/99 (see page 387 – 394 of the Record) was that the 1st Appellant’s ancestors the Oloto Chieftaincy family to the 1st Appellant’s.
?
The Appellants claim that the land in dispute is at Makoko and not Onike as claimed by the Respondents. The Appellants claimed to have exercised land in dispute especially portions the Respondents

2

laid claim to. Numerous Conveyances by the 1st Appellants ancestors were pleaded and tendered in evidence. Exhibit “E” the Plan of the land sold to the 1st Appellants? ancestors was tendered in evidence by the 1st Appellant (see lines 25 to 30 p. 248 & P. 249 of the Record). The Appellant also pleaded the judgment in Suit No. 105/43 to show that their claim to portions of the land in dispute situate at Makoko has been sanctioned by the Court. Judgment in Suit LD/499/67 was also pleaded to show that during the lifetime of Joseph Adelola Olaniyan, (the Respondent’s predecessor-in-title) he laid claim to compensation in respect of the land in dispute, with the same Conveyance as in the present case, but a Court of competent jurisdiction refused his claim and found in favour of the 1st Appellant’s ancestors. Composite Plans of the land in were tendered by both parties. The Composite Plan of the Respondents are Exhibits “D1, D2 and D3″ while the Composite Plan of the Appellants is Exhibit ?X”. The plan tendered by the Respondents shows the land in dispute to be at Makoko. Two witnesses each were called by the Respondents and the Appellants.

It is

3

against the backdrop of the above cases of the Respondents and the Appellants stated above that the learned trial judge in his judgment (see page 437 to 449 of the Record) entered judgment for the Respondents.

The Appellants are dissatisfied with the judgment of the learned trial judge and have appealed to this Honourable Court. The Notice of Appeal filed against the judgment is at P. 451 – 452 of the Record. Pursuant to the leave of this Honourable Court granted on 11/4/06, to the Appellants, to file additional Grounds of Appeal and to amend the original Notice of Appeal, an Amended Notice of Appeal was filed on 3/5/06.

When the 1st Appellant, who defended the suit on behalf of his family and represented other Appellants at the trial Court died on 23/02/2011 he was substituted by Alhaji Sulaimon Olaiya-Akinsemoyin, by the order of this Honourable Court dated 4/10/2011. Alhaji Sulaimon Olaiya ? Akinsemoyin also died on 6th January, 2012 and was substituted by Alhaja Olayide (Nee olaiya) as the 1st Appellant by order of this Honourable Court dated 20/02/2012. Hence the filing of Appellants’ further Amended Brief of Argument. From the Amended

4

Notice of Appeal containing fourteen (14) Grounds, dated/filed 4/5/06, Appellant formulated the following 8 issues as follows:
(1) Whether or not the learned trial judge’s holding that the land in dispute is at onike yaba without resolving/evaluating the conflicting evidence between the parties on the location of the land led to a miscarriage of justice? Ground 2
(2) Whether the learned trial judge was right or wrong in holding that Exhibits ?E & F’ are not related to the Respondents’ land and that the Appellants deliberately withheld plan No. C9/43 referred to in suit No. 105/43 from Court and tendered plan No. C22/43 instead? – Grounds 5 and 6.
(3) Whether the learned trial judge rightly refused the Application to withdraw the originating summons in suit No. LD/499/62 in evidence and marked same rejected? – Ground 8
(4) Whether or not the learned trial judge was right or wrong in his refusal to apply the principle of nemo dat quod non habet and in holding that the Appellants were not in possession of the land in dispute before the Respondents purchased same in 1964? Grounds 3 & 4.
(5) Whether the learned trial judge was