Alhaji Fasasi Olowolagba & Ors V. Abudu Rashidi Bakare & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division, which had on the 19th day of January, 1995, dismissed the appeal by the plaintiffs from the decision of Sotuminu, J., sitting at Ikeja in the High Court of Lagos State.

The plaintiffs for themselves and as representing the entire members of the Matemi/Amore family of Orile, Ikeja had instituted an action jointly and severally against the defendants, as executors of the estate of the late A. G. Bakare, claiming as follows:

“1. A Declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Ikeja near Alade Village in the Ikeja District of Lagos State of Nigeria.

2. N500.00 damages for acts of trespass committed by the Defendants, their privies, servants and/or agents on the said land.
3. Perpetual injunction restraining the Defendants their privies, agents and/or servants from further acts of trespass.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the subsequent trial, the parties testified on their own behalf and called witnesses. The plaintiffs predicated their title to the land in dispute mainly on evidence of traditional history; claiming that they had been on the land from time beyond human memory and on acts of possession on the land. The defendants, on other hand, sought to establish their title to the land in dispute by traditional evidence, the production or documents of title, acts of long possession and other acts of ownership, numerous and positive enough to warrant the inference that they are the owners of the land in dispute. While the plaintiffs claimed their root of title in respect of the land in dispute from the Amore family of Orile, Ikeja, the defendants traced their own title from the Owodina family.

At the conclusion of hearing, the learned trial Judge, after a review of the evidence on the 10th day of February, 1989 was of the view that the plaintiffs’ traditional evidence was unconvincing, unsatisfactory and was not established.

The court further held that the plaintiffs did not establish that the land in dispute belonged to or was possessed by them or their ancestors. The plaintiffs’ claims were accordingly dismissed in their entirety.

Aggrieved by this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Lagos Division. The Court of Appeal in a unanimous judgment on the 19th day of January, 1995 dismissed the plaintiffs’ appeal.

Dissatisfied with this decision of the Court of Appeal, the plaintiffs have further appealed to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the appellants and the respondents respectively.

Five grounds of appeal were filed by the appellants against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the parties, pursuant to the Rules of this court filed and exchanged their written briefs of argument.

The three issues distilled from the appellants’ grounds of appeal set out on their behalf for the determination of this appeal are as follows-

“1. WHETHER THE FAILURE OF THE COURT OF APPEAL to determine and pronounce on the Additional Ground of Appeal dealing with damages for trespass and injunction (Ground 5) (p.384) was not in Breach of section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended.

2. WHETHER THE FAILURE OF THE COURT OF APPEAL to determine the Additional Ground of Appeal dealing with damages for trespass and injunction did not occasion a miscarriage of justice to the rights of the plaintiffs/appellants.
3. WHETHER THE COURT OF APPEAL ought to have entered judgment for the plaintiffs/appellants on their claims for damages for trespass and injunction on the evidence on record.”

The respondents, for their part, submitted that as the appellants joined no issue with the respondents on the dismissal of the appellants’ claim for declaration of title, the said respondents would adopt the issues for determination as formulated by the appellants save that the first question ought to be reframed thus-

“Whether or not the learned Justices of the Court of Appeal gave due consideration to the appellants’ claims for trespass and injunction.”