Alhaji Wahab Irawo & Anor V. Adebayo Adedokun & Anor (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A. 

This appeal is against the judgment delivered in suit No. LD/1348/85 on the 3rd of March, 1995 by the High Court of Lagos holden at Lagos.

The appellants who were the plaintiffs in the court below had through their writ of summons claimed against the defendant in that court (then known as Madam A. Ejide) the following reliefs:-
(1) A declaration that the plaintiffs are entitled to right of occupancy to all that piece or parcel of land situated, lying and being at Nos. 10 and 11, Owokoniran Street, Idi-Araba, Surulere, Lagos State.
(2) An order for the rectification of the Registrar (sic) (in respect of the Land Certificate Nos. MO2790 in plaintiffs’ favour as the registered proprietor of the fee simple estate of the land in dispute.
(3) N500,000 damages for trespass committed by the defendant, her servants and agents on the said land
(4) A perpetual injunction restraining the defendant, her servants and her agent or otherwise from entering or doing anything on the said land in dispute.

Pleadings, in terms of statement of claim with the leave of court, amended statement of defence and amended reply to the amended statement of defence. I pause to say that whilst this appeal was pending, the original defendant (Madam Adepate Ejide) died. The present respondents (Adebayo Adedekun and Mrs. Iyabo Oyedele) were with the leave of court substituted for her. Both sides called evidence, both oral and documentary, in support of the averments in their respective pleadings. At the end of the trial and the addresses of counsel on both sides, the learned trial Judge in a reserved judgment delivered on the 3rd of March, 1995, dismissed the claims of the plaintiffs in their entirety.

Dissatisfied with the decision, the plaintiffs/appellants entered a notice of appeal against it. That notice of appeal dated 16th March, 1995 and filed on 17th March, 1995 carries only one ground of appeal – The omnibus ground. With the leave of this court, four additional grounds of appeal were filed. I say there are only four additional grounds of appeal although on the body of the process filed on 17th November, 1999, there appear five additional grounds. The fifth additional ground of appeal is a repetition of the only ground stated on the notice of appeal filed on 17th November, 1999.

Three issues were identified by the appellants for determination by this court. As set out in their brief of argument filed on the 23rd of November, 1999, they are in the following terms:
(1) Whether the preponderance of evidence is not in favour of the plaintiffs as to entitle them to judgment for declaration?.
(2) Whether the plaintiffs are not entitled to damages for trespass and their unchallenged evidence of possession?.
(3) Whether refusal of rectification on grounds of insufficiency of evidence and non-joinder of the Registrar of title is proper?.

For their part, the respondent raised only one issue for determination. As reflected in their brief of argument, it is as follows:
“Whether or not the appellants established their claim in declaration of title before the leave of court?.”

When this appeal came before us on the 11th of November, 2003 for argument, Chief Omoyinmi, learned counsel for the appellants adopted and relied on the brief of his clients filed on 23rd November, 1999 and the reply brief filed on 18th October, 2001; he urged that the appeal be allowed. Mr. Joseph, SAN adopted and relied on his clients’ brief filed on 3rd October, 2001; and while urging us to dismiss the appeal he referred us to an additional authority which is the decision in Lebile v. Registered Trustees of C & S (2003) 2 NWLR (Pt. 804) 399 in further support of the arguments canvassed in his clients’ brief.

The case of the plaintiffs/appellants’ as could be gleaned briefly from their pleadings is thus: the plaintiffs’ hold themselves out as head and principal members of Ojomo-Eyisha family of Lagos State and thus, they have brought this action in a representative capacity; the land in dispute has always been an integral part of Ojomo-Eyisha family land from time immemorial and that they have always exercised right of ownership and possession on the larger parcel of family land which includes the land in dispute from time immemorial – from the time of their progenitors.

They further avered that though not their tenants, the defendant (then Madam Adepate Ejide) entered the land in dispute without their consent despite the protests and warnings which include litigations, court litigation between Ojomo-Eyisha family and Oloto chieftaincy family over a large parcel of the land ended in favour of the plaintiffs family as the Oloto chieftaincy family withdrew their claim.

As between Ojomo-Eyisha family and Tinubu family over the said large parcel of land which includes the land in dispute, the litigation that ensued ended in favour of Ojomo-Eyisha family. It was their clear averment that the root of title of the defendant was from the Tinubu family. While conceding that certain portion of land was acquired for the Lagos University Teaching Hospital, they strongly contended that the land in dispute does not form part of the land so acquired for the hospital. The defendant, it was again contended, had notice and knowledge of all the litigations. The immediate predecessor-in-title knew of all the court actions which went in favour of the Ojomo-Eyisha family over the larger parcel of land before purporting to effect sale of the land in dispute to the defendant. They finally averred that neither the defendant nor her predecessor-in-title nor even the Registrar of titles in Lagos State notified them (plaintiffs) before issuing land certificate to the defendant in respect of the land in dispute.

The case of the defendants/respondents as shown through their pleadings briefly is that she started and completed substantial portion of the buildings on the land without any protests or warnings from the plaintiffs/appellants. She claimed that they were not aware of any court proceedings and according to them, those proceedings did not relate to the land in dispute. The ancestor of the present respondent now deceased (Madam Adepate Ejide) claimed that she became the owner of the land in dispute by virtue of a deed of conveyance dated 7th May, 1962 executed in her favour by one Oladipo Alade who himself had become the owner of the said land by virtue of a Deed of Conveyance dated 11th of September, 1959. The defendant and her predecessor-in-title were in the pleadings said to have enjoyed continuous and uninterrupted possession of the said parcel of land. The defence finally relied on equitable defences of acquiescence, laches, long possession and the legal defence of Limitation Decree, 1976.

In their reply to the defence, the plaintiffs/appellants averred that equitable defences relied upon by the defence were not available to them for the reason that she was aware of the litigation and by extension she could not take the advantage of the provision of the Limitation Law.
As I have earlier said, the learned trial Judge sequel to taking the final addresses of counsel on both sides, in a considered judgment delivered on 3rd March, 1995 dismissed the plaintiffs/appellant’s claim in toto. In coming to the conclusion reached, the learned trial Judge reasoned inter alia:
“In the present case, neither the 1st nor 2nd P/W who are in the position to lead evidence on the facts of traditional history in proof of the title to land did so. Nor did the first plaintiff testify as to the issue of sales or leases to palm wine-tappers etc, as contained in their pleadings. No witnesses were called on the issue.

However, there still remained the pleading that they successfully prosecuted and defended court actions in respect of the land. The 2nd PW gave evidence of the action brought (sic) by them against the government for claim of compensation for the Lagos University Teaching Hospital land which they claimed from part of the land in dispute, exhibit J. the proceedings in the said case was tendered but not the Judgment in at (sic) these actions …