Alhaji J. Aromire & Ors v. J. J. Awoyemi (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This appeal is from a judgment of the High Court, Lagos (George J.) in a case in which the plaintiff (now respondent) had claimed originally against one Alhaji Jubrilla Aromire on a summons endorsed as follows:

“The plaintiff’s claims against the defendant are for the sum of 3500pounds being special and general damages for trespass.

2. Recovery of possession of all that piece or parcel of land situate at Obele Oniwala Court, Awoyemi Compound in the federal territory of Lagos;
3. An injunction restraining the defendant, his servants and/or agents from committing further acts of trespass on the said land. Title is involved.”

Alhaji Jubrilla Aromire is now the 1st appellant before this Court. Soon after the filing of the writ the plaintiff took out a motion asking for an interim injunction to restrain the defendant, Alhaji Aromire and privies, servants and agents from further trespassing on the land.

The defendant then filed a counter-affidavit in which he stated, inter alia, that he was only an agent for one Alhaji Elias who claimed to have owned the said land which he had later sold to one O. J. Mazelli. An order of interim injunction was made and pursuant to orders of the High Court, O. J. Mazelli and Alhaji Elias were joined as the 2nd and the 3rd defendants respectively. Before us they are the 2nd and 3rd appellants respectively.

Later, and in the course of the proceedings in the High Court, the plaintiff took out another motion asking the court to order that his surveyor should be allowed to survey the land in dispute for the purpose of preparing a plan in compliance with the order of court for pleadings to be filed. That motion was supported by an affidavit of the plaintiff and paragraphs 8 and 9 of that affidavit, so far as they are pertinent, read as follows:

“8. That my surveyor informed me and my solicitors that he had been twice on the land but was prevented by Mutairu Salu and Buraimoh Awoyemi from carrying out the survey.

9. That the said Salu and Buraimoh are agents on the land in dispute of the defendants. . . .”

Apparently, Buraimoh Awoyemi and Hadji Yaya Bakare Faji were put on notice as their names were mentioned in the plaintiff’s affidavit. Both of them thereafter filed counter-affidavits. In the counter-affidavit of Buraimoh Awoyemi the following paragraphs, among others, occur:

“2. That I am the present head of the Awoyemi family of which the plaintiff/applicant is a member and also the Bale of Obele Oniwala Court.

3. That Obele Oniwala Court where the plaintiff and over 50 other persons live is vested in 3 families-Imoru, Awoyemi and Faji, from time immemorial as co-owners.
4. That neither I nor the whole of Awoyemi family is a party to the suit which the plaintiff pursues in his personal capacity, without the knowledge and consent of the family.”

Similar renunciations are contained in the counter-affidavit filed by Hadji Yaya Bakare Faji who claimed to be a principal member of the Faji Otun family. The plaintiff obtained the order for his surveyor to survey the land in dispute and the adjoining lands in the following terms:

“IT IS HEREBY RULED that the plaintiff’s surveyor be and is hereby authorized to survey not only the land in dispute but also with it the contiguous lands which with the land in dispute originally belonged to the extended family AND THAT the plaintiff should serve on each of those three occupants put on notice with his statement of claim and plan so that they will be in a position to know the extent of the plaintiff’s claim. IT IS ALSO ORDERED that the plaintiff’s surveyor is not to be interfered with in his operations by the defendants and those on notice, their servants and agents.”

It should be observed that the persons put on notice of the motion were not parties to the suit and they had not before then seen either the writ or the pleadings of the parties although they had sworn positively that they were not agents of the defendants or any of them. The imprudence of the step taken of serving them with notice of the motion when they were not parties will be manifest later. However, pursuant to the events that happened Joshua Faji, Buraimoh Awoyemi and Alhaji Mutairu Salu took out a motion asking that they be joined as defendants in the action. They were so joined and became the 4th, 5th and 6th defendants respectively. Before us they are as well defendants/ respondents.

Pleadings were filed and exchanged by the parties. By his statement of claim the plaintiff avers that the land in dispute, edged yellow in his plan, was part of the larger piece of land edged blue allotted to the Awoyemi family out of a yet bigger parcel of land shown edged red on the same plan, originally belonging to one Ojo Awoyemi by native law and custom he being the first settler on the land. The statement of claim further avers that by virtue of the plaintiff being a descendant of the aforesaid Ojo Awoyemi, he had been let into possession and had indeed erected a building on the yellow area and had always lived there with his family in the same way that his own progenitors before him had lived in the houses built by them on

the land. The statement of claim further states that in or about the month of February 1965 the 1st defendant broke and entered into the said land, demolished his out-houses and despite his repeated warnings commenced building operations on the said land. Finally, the statement of claim avers that the 2nd and 3rd defendants also wrongfully entered upon the said land and have claimed ownership of same. The 1st, 2nd and 3rd defendants filed a statement of defence. That statement of defence avers that the land in dispute was part of extensive areas of land originally belonging by native law and custom to the Asalu Alago family, that that family consisted of two main branches, i.e. the Olufajo branch and the Iyajomu branch, that these two branches also comprised of sub-branches and that in particular the Iyajomu branch comprised the sub-branches of the Osuro and the Oduntan-Aboyomi kindreds. The statement of defence of the first three defendants further avers that pursuant to an order of court all the lands of the Asalu Alago family were partitioned among the branches and sub-branches of that family and that the land in dispute fell within the lot of the Osuro sub-branch, the members of which had in turn sold same to the 3rd defendant by virtue of a conveyance dated 11th February, 1954. The statement of defence of these defendants further avers that it was the 3rd defendant who had sold the land to the 2nd defendant and that the 2nd defendant had already completed the erection of a sizeable building on the land.

The defendants/respondents had also filed a statement of defence. In that statement of defence they denied the principal averments in both the statement of claim of the plaintiff and the statement of defence of the first three defendants (hereinafter referred to as “appellants”). The statement of defence of the defendants/respondents further avers that:

“The whole of the Obele Oniwala Court, or Obegirimo as it was formerly known a portion of which is the subject-matter of this suit wasoriginally granted through Ojo Awoyemi alias Asorofowora to its three original inhabitants Mommokoro, Faji Otun and Awoyemi Otun Ojo absolutely very many years ago upwards of 200 years by Osuro himself.”

Their statement of defence also avers that the lands of the family had always been used in common by the three families represented by the defendants/respondents that at no time did they sell any portion of their lands to the 3rd defendant or anyone else and ended thus:

“That the plaintiff has not obtained the authority of the three families nor that of Jinadu family or Buraimoh family and as a minor member of the three families he cannot represent them neither can he claim the land in dispute in his own right as there had been no partition of the Obele Oniwala Court.”

At the trial, both the plaintiff and the appellants gave evidence in support of the averments in their pleadings. None of the defendants/ respondents gave evidence but they called a witness by name Abudu Alli, an old man of some 70 years and an important member of the Osuro sub-branch of the Asalu Alago family; he testified that the land in dispute is known as Oniwala Court, that it was part of lands given by Osuro to Awoyemi and on which the Awoyemi family have lived ever before he was born; he knew that the Osuro family had sold land to the 3rd defendant but stated that that land did not include Obele Oniwala and he claimed to be one of those who had executed the conveyance of the land in favour of the 3rd appellant.

In the course of a reserved judgment in which he reviewed the evidence, George J. gave judgment in favour of the plaintiff with costs against the appellants awarding damages against the 1st appellant and dismissed the defendants/respondents from the action.

The appellants have appealed against that judgment to this Court and the ground of appeal complains that the judgment of the learned trial judge misconceived the point of the entire proceedings since it was not established that the plaintiff had a title superior to that of the 3rd appellant who also claimed to have bought the land and to have always been in possession of it. Learned counsel for the plaintiff on the other hand submitted that the learned trial judge had rightly found that the plaintiff was always in possession of the land and that therefore he could rightfully maintain an action for damages for trespass against the 3rd defendant whose title was not superior to his own. The defendants/ respondents also opposed the appeal and indeed filed a notice pursuant to the provisions of Order 7, rule 13 of the Rules of the Supreme Court asking us to affirm the judgment of the learned trial judge on the grounds that the evidence of the defendants postulated that they were customary tenants, that the learned trial judge should have so held and that on that basis their possession of the land could not be disturbed unless there be a previous and subsisting decree of forfeiture of their possessory interests.

The issues properly raised by this case are relatively simple but the introduction of the defendants/respondents into the case, i.e. the defendants joined by order of court, had done quite a lot to confuse the entire case and befog the appreciation and resolution of the live issues. We observe that the defendants/respondents felt compelled to ask to be joined in this matter because the High Court had ordered that they should be served with notice of a motion by which the plaintiff had sought the protection of the court for his surveyor who was to prepare his plan for his statement of claim.

The defendants/respondents were not parties to this case originally; they did not have a writ; they did not before then have the pleadings. The plaintiff had no cause of action against them; he had not sued them for anything and he had not claimed against them in any respect. Indeed, his writ and statement of claim, despite the introduction of the defendants/ respondents into the case, contained nothing whatsoever about any claims as against the defendants/respondents. The relevant rule of joinder in the High Court, Lagos, is in Order IV, rule 5( 1) which reads in part as follows:

“5. (1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some shareor interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be . . ..”

It is apparent from the pleadings and the evidence that the plaintiff was not claiming anything from or against the defendants/respondents. The nature of their own interest in the subject matter of the case itself is as described in their pleadings and discussed earlier on in this judgment. Their application was to be joined as co-defendants to the action, and the application was granted in these terms. It certainly would have been meaningful if the defendants/respondents had asked to be joined in the action as co-plaintiffs, but if they did so ask, as by their present pleadings, the basis of their own claim of ownership would have been inconsistent with that of the present plaintiff. The learned trial judge who eventually tried the case was faced with the problem of the locus standi of the defendants/respondents and before concluding his judgment, he observed thus with respect to them:

“As I have said, throughout the course of this case the 4th, 5th and 6th defendants should have, in my view, been joined as plaintiffs and not as defendants. Their interests are adverse to that of the 1st, 2nd and 3rd defendants.”

Their position is no better on this appeal and we are at a loss ourselves to know why they were joined as defendants and what is worse still why they had filed a notice before us pursuant to the provisions of Order 7, rule 13 of the Rules of the Supreme Court. As far as they are concerned they would be dismissed from this appeal and will in any case pay the costs of their misconception.

We had already set out the claims of the plaintiff as on his writ damages for trespass, recovery of possession and a perpetual injunction. It is pertinent at this juncture to observe that the claims as appearing on the summons are self-contradictory. A claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser. On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land. Hence, in the present case the claims for trespass and for recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was) Part of the submission of learned counsel for the appellants before us is that the plaintiff’s writ postulates that he was not in possession at the time of action as otherwise he would not be suing to recover possession. We think however that that is a matter which should be considered against the background of the whole case for far more important is the consideration of the cases of the parties as reflected in their pleadings.

In the plan exhibit A, prepared by the plaintiff’s surveyor, Mr. Kukoyi, a building was shown inside the yellow area.

In the course of the evidence of Mr. Kukoyi at the trial he stated thus with respect to that building:

“At the time I first went to survey the area the building in the portion marked yellow in exhibit A had already been erected. All the buildings marked in exhibit A are solid buildings. I cannot say that they are temporary buildings. Only are permanent buildings.”

He had prepared exhibit A in 1963 and stated in evidence that the building shown thereon was erected by the appellants. In the same way the witness for the appellants, Reginald Fred Horsfall, a survey assistant in the office of Mr. Body-Lawson, a licensed surveyor, testified that when he visited the site in 1963 at the instance of the appellants, the building claimed by the appellants to have been erected by them on the land edged yellow was already standing there. The present action was commenced on the 8th March 1965.

Both the pleadings and the writ of the plaintiff indicate that title was involved and postulate that the plaintiff, previously in possession of the land, had been evicted therefrom and claims restoration of his possession by virtue of his title. The appellants on the other hand claim to have always been in possession of the land by virtue of the title which they had acquired from the descendants of Osuro. So both parties claim to have been in possession of the land and canvas their titles for the justification of their possession. In the course of his judgment, the learned trial judge observed:

“This is an action for trespass and trespass is unlawful interference with possession. I am satisfied on the evidence before me that the plaintiff was in possession of the portion verged yellow in exhibit A. The defendants can only succeed if they can prove that the land had been conveyed to them by a person or persons in whom the legal estate was vested if they had any interest to convey at the time.”

Later in the course of the same judgment he stated thus:

“The 3rd defendant cannot claim superior title because (1) the Awoyemi family had been in long uninterrupted possession of the land in dispute for well over 70 years, (2) no evidence was submitted by the 3rd defendant to prove that Obele Oniwala or Awoyemi Village is included in exhibit E and (3) at the time of the conveyance exhibit E in 1964, the Asalu-Alago family had no interest to convey in Obele Oniwala. Even if I am wrong in saying that the 3rd defendant has not proved his title there still remains this fact that the plaintiff has been unnecessarily disturbed in the peaceful possession of his property. Even a landlord cannot treat a tenant the way the 1st, 2nd and 3rd defendants treated the plaintiff. The plaintiff is therefore entitled to judgment for trespass.”

The learned trial judge made no finding, express or implied, as to whether or not the appellants or anyone of them was ever in possession of the land although implicit in his judgment is the claim by the appellants that they have always been in possession of the land and had indeed obtained monetary compensation from the L.E.D.B. for compulsory acquisition of part of it and that even if that was not sufficient evidence of their possession, that they were at the time of the action in actual physical possession by virtue of their superior title. In the course of the trial, the plaintiff gave evidence of his title as emanating from Ojo Awoyemi as being the first settler on the land. That evidence was disputed by both the appellants and the elder members of his own family, i.e. the defendants/respondents. Referring to the evidence of the witness called by the defendants/respondents, the learned trial judge himself observed as follows:

“He testified that the land known as Obele Oniwala was given by one Osuro as a gift to Awoyemi and that the Awoyemis had been living on the land without paying any tributes.

In cross-examination, he said:

‘I am one of the people who signed the conveyance of Alhaji Elias, the 3rd defendant. We sold to him the land conveyed, but it does not include Obele Oniwala.’

Indeed, this witness is one of the signatories of exhibit E. It is the version of this old man that the land was given to the Awoyemis as a gift without tribute that I accept.”

If that is so, then it is manifest that the judge did not accept the story of the plaintiff that the land belonged originally to the family of Ojo Awoyemi alone or that Ojo Awoyemi was the first settler on the land. Hence the plaintiff has failed to prove the title which he asserts on his pleadings.

Rather the witness Abudu Alli (whom the judge believed and whose evidence he accepted) stated that the land belonged to Osuro and that as a member of the Osuro family he had joined in executing the deed of conveyance produced in evidence at the trial as exhibit E in favour of the 3rd appellant. On this point the learned trial judge commented as follows:

“Although the 3rd defendant produced a certified true copy of the conveyance exhibit E: it was only in cross-examination that a witness said he was one of the signatories. This deed is dated 11th February, 1954, it is therefore a document less than 20 years old. The plaintiff cannot therefore rely on the presumption in his favour under Section 129 of the Evidence Act. However one of the vendors was present and he said he signed the deed of conveyance, but that the piece of land sold therein to the plaintiff did not include Awoyemi Village or Obele Oniwala. ”

With respect, the comments on the age of the document are irrelevant to the issues being litigated. There was positive evidence from the 3rd defendant that the land in dispute was within exhibit E and that part of it was acquired from him and paid for by the L.E.D.B. There was also the evidence of an independent witness, that is a technical officer in charge of acquisitions at the L.E.D.B., who stated that the land acquired in 1955 was part of exhibit E and that the claim of the 3rd appellant for monetary compensation therefore was unopposed. The learned trial judge made no findings, as he should have done, on this evidence which he nowhere in his judgment rejected.

Learned counsel on behalf of the appellants has submitted, and in our view with justification, that on a proper appraisal of the facts the learned trial judge should have found that the 3rd appellant also claimed to be in possession of the land and then resolved the issue of the competing titles of the plaintiff and the 3rd appellant. It is of course settled law that where two parties claim to be in possession of land the law ascribes possession to the one of them with the better title. (See Jones v. Chapman (1848) 2 Exch. 803; Canvey Island Commissioners v. Preedy [1922] 1 Ch.179). In a similar case this Court directed as follows:

“We are in no doubt that on the pleadings the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly, in possession of the land. The learned trial judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses and their conduct; but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed it is, the defendant is in possession and maintains that he is entitled so to remain. If it be alleged that some one in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiff’s case had failed and it should have been dismissed.”

(See Godwin Egwuh v. Duro Ogunkehin, S.C. 529/66 decided on the 28th February, 1969).

This certainly is the approach which the learned trial judge should have taken to the whole case as it was manifest on the evidence and the pleadings of both parties that at least some two years before the institution of the proceedings the appellants had been in possession of the land.

The plaintiff claimed that they were trespassers but assuming that they were, indeed the plaintiff in order to evict them must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective. (see the observations of the West African Court of Appeal in Alhaji Adeshoye v. Siwoniku (1952) 14 W.A.C.A. 86 at p. 87). The learned trial judge observed in a number of passages that the appellants had not proved their title or that the land in dispute fell within Section 1 within exhibit E. On the strength of the authorities the plaintiff’s title must first be considered and decided upon before a consideration of the title of the defendants arises. The learned trial judge accepted the evidence of the gift to Awoyemi but the nature of that gift and the actual extent of it were not proved as they should have been and those whom the plaintiff himself acknowledged as the elders of his family categorically repudiated the story of the claim by the plaintiff and indeed were contending before us that they were customary tenants.

Finally, we observe that it was sought by learned counsel for the plaintiff to place reliance on the differences of the names being ascribed to different portions of land in the vicinity such as Obele Oniwala, Obele-Odan and Obele Oniwala Court and so on. We are not impressed by the distinctions which are sought to be thereby introduced for very among the members of the community concerned the same place bears different names and it is only fair to rest identification on places on plans produced in the case, i.e., exhibit A and exhibit E. We think that in this case different names have been applied to the same areas with an alarming degree of imprecision.

We are not in any doubt that the approach of the learned trial judge to the entire case was wrong and that on a proper approach he should have held that the plaintiff had failed to discharge the onus of proof which rests on him by virtue of his own writ of summons, his pleadings in the case and his evidence, oral and documentary, which he had canvassed before him.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Lagos in Suit No. LD/107/65, including the order for costs, is set aside and we make the following orders:

(i) The plaintiff’s case is dismissed and this shall be the judgment of the Court.

(ii) The plaintiff shall pay the costs of these proceedings to the appellants fixed in the lower court at 90 guineas and in this Court at 64 guineas. The defendants/respondents shall also pay to the appellants the costs of these proceedings fixed at 30 guineas.

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Other Citation: (1972) LCN/1551(SC)