Colonel Olu Rotimi & Ors. v. Mrs. F. O. MacGregor (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The present appellants were the defendants in an action instituted against them by the respondent, Mrs. E.O. MacGregor, as plaintiff, in the High Court of Lagos State. The writ in the action was endorsed for the following claims, that is to say

“(a) A declaration of title to that piece or parcel of land situate lying and being at Anifowose Village Ikeja Lagos State described in a plan to be filed in this suit;

(b) 3,620 special and general damages suffered by the plaintiff from the defendants on 20th day of March, 1970, wrongfully breaking and entering into the plaintiff’s piece or parcel of land situate lying and being at Anifowose Village Ikeja, Lagos State in the plaintiff’s possession and there damaging the plaintiff’s properties;

(c) An injunction against the defendants by themselves their servants and/or agents or otherwise from interfering with the plaintiff’s possession of the said piece or parcel of land.”

The parties duly complied with the orders of court to file pleadings and in due course severally amended their pleadings. By her amended statement of claim, the plaintiff claims to have always been in possession of the land in dispute by herself and her predecessors-in-title; she claimed that the land originally belonged to one Oshoja who died many years ago, one of whose descendants was Iyade and whose descendants eventually sold the piece of land in dispute out of a large whole to one Alhaji Alli Isiba who in turn had sold to her by virtue of an indenture of conveyance dated the 24th September, 1967 and registered as No. 31 at p.31 in Volume 1027 in the Register of Deeds kept in the office in Lagos and confined or rectified by a deed of ”rectification” dated the 8th July, 1971, from the head and other representatives of the Iyade family. It is also part of the plaintiff’s case that by virtue of an indenture of conveyance dated the 23rd day of February, 1970, and registered as No. 64 at p. 64 in Volume 1311 in the Register of Deeds kept in Lagos, and rectified by another deed of rectification dated the 8th April, 1971 and registered as No. 74 at p.74 in Volume 1350 in the Lands Registry Office in Lagos, the said Alhaji Alli Isaba sold and conveyed the said parcel of land to the plaintiff who then immediately went into possession and commenced building operations therein. Paragraphs 16 of the plaintiff’s amended statement of claim then avers as follows:

“16. That sometime in March 1970, the plaintiff began her building operations on the said land and the said building proceeded up to the damp proof course level when on or about 23rd day of March 1970, the defendants, their servants and/or agents including fully armed soldiers in uniform forcibly broke and entered into the said land in dispute which was in possession of the plaintiff as aforesaid and broke down the plaintiff’s shed, destroyed her cement blocks and other building materials on the said land.”

By their amended statement of defence, the defendants claimed that the land in dispute is but a portion of a large area or tract of land originally belonging to the “Oshoja family (otherwise known as the Iyade Oshoja family)”and that the 1st defendant claims ownership of the said land by virtue of a conveyance dated the 5th day of February, 1965, and registered as No. 46 at p. 46 in Volume 814 of the Register of Deeds kept in the Registry Office in Lagos from that family to one Karimu Arubo who then conveyed same to the 1st defendant for an estate in fee simple in possession by virtue of another conveyance dated the 25th day of July, 1969, and registered as No. 47 at p. 47 in Volume 1292 of the Register of Deeds kept in Lagos. Paragraphs 8 and 9 of the statement of defence plead thus:

“8. The defendants will at the trial of this action rely on proceedings and judgement in Supreme Court Suit No. 345/1933 (Odu Abijo & Anor. vs. M.B. Nuru & Ors.)

9. The defendants plead that his predecessors in title were in possession of the land prior to the date when the plaintiff’s predecessor-in-title purported to acquire title to the land or any portion thereof.

Apart from the general transverse appearing at the top of the amended statement of defence, there is no specific pleading in answer to paragraph 16 of the plaintiff’s statement of claim.

Both parties gave evidence at the trial and in the course of a reserved judgment, the learned trial judge stated concerning the claim of the plaintiff for declaration of title that “The plaintiff’s claim for a declaration of title cannot, in my view, succeed. In the course of the address I invited learned counsel on both sides to address me on the matter of non-suit and they did. In my view the plaintiff’s case for a declaration ought not to be dismissed as I think if properly presented, it may be possible as I think if properly presented, it may be possible for her to present a case that might lead to an order for a declaration of title. I will say no more than that.

I have decided that neither party to this action has established a right to title.”

With respect to the claim for damages for trespass, the learned trial judge concluded that

“I believe that those who had been in possession of the land sold to Isiba and delivered possession to him. I believe that Alhaji Isiba did exercise rights of possession over the land before he sold the portion with which we are here concerned to the plaintiff. The type of conduct which indicates possession must vary with the type of land. In this case it was originally farmland later sold for building purposes. It was sufficient that fruits were reaped from it originally and later it was cleared and made ready for building. The plaintiff herself has established beyond question that she was in possession of the piece of land in dispute, and that they bore the pillars Nos. YS1257, YS1258, YS1259 and YS1261 when on the 20th March 1970 the land was trespassed upon and damage caused thereupon.”

He then considered the implications on the case of the plaintiff vis-a-vis the 1st defendant of section 161(1)(c) of the Constitution of Nigeria, 1963, and held that as the 1st defendant became the Military Governor of the Western State during the pendency of this case, the action should not have been continued thereafter against him. He however found against the 2nd and 3rd defendants on the head of claim for trespass and awarded against both of them “jointly and severally” an amount of 600 (or N1,200) together with costs.

The learned trial judge made no order whatsoever in respect of the plaintiff’s claim for injunction, apparently because of his views concerning the constitutional position or status of the 1st defendant.

The defendants have appealed against the decision of the High Court to this Court and, on behalf of the plaintiff a notice under Order 7 Rule 13 of the Rules of the Supreme Court was filled indicating that she would contend at the hearing of this appeal that she should have been awarded title to the land in dispute.

Before us on appeal, learned counsel for the defendants argued his appeal under four main grounds as follows:

(i) Plaintiff’s title is void and not just avoidable and her claim to title and others should have been dismissed;

(ii) Defendants’ title is merely avoidable and not void and on that ground plaintiff’s action should have been dismissed;

(iii) The defendants in any event were in prior possession of the land in dispute and so the plaintiff’s case should have been dismissed; and

(iv) Weight of evidence.

It is apposite at this stage to refer to a point of considerable importance which although not directly canvassed in this Court, as it was in the High Court, yet is of paramount significance in the institution of this case, the parties thereto, the continuance of it and its prosecution to the end and indeed the final judgement on the many issues raised and decided thereby. In the course of his final address to the High Court, Lagos, learned counsel for the defendants for the first time and without at any time pleading it raised the question of the constitutional position of the 1st defendant, who was at that time and until now the Military Governor of the Western State. Learned counsel submitted before the High Court that by virtue of section 161 (1)(c) of the Constitution of the Federation

of Nigeria, 1963, the court could not given any judgement against the 1st defendant, that it was not necessary for him to plead that section of the Constitution which although it purports to confer a private right or privilege to immunity is evidently a matter of public policy embodied in a public act or legislation of which the court is bound to take judicial notice and which could not, by the incumbent of the office concerned, be waived.

We stated earlier on that the learned trial judge who tried the case considered these submissions. He came to the conclusion that the Constitution of the country is a public act of legislation, that the section concerned involves public policy which the 1st defendant could not waive himself and so declined to make any orders against him.

We refer to section 161 of the Nigerian Constitution, 1963, which provides as follows:

“161(1) Without prejudice to the generality of section 156 of this Constitution

(a) no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and

(b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no proceedings in which relief is claimed against such a person in his personal capacity shall be instituted or continued in any court during his period of office; but in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this subsection applies, his period of office shall be left out of account

(2) Subsection (1) of this section applies to a person holding or required to perform the functions of the office of the President or of the Governor of a Region, and in that subsection “period of office” means, in relation to such a person, the period during which he holds or is required to perform the functions of the office in question.

XXX XXX”

Manifestly, the section is prefaced “without prejudice to the generality of section 156 of this Constitution”. If one turns to section 156 it is easy to see that that section of the Constitution preserves all the existing laws and, in adapting them within the umbrella of the Constitution, prescribes that they should “have effect with such modification (whether by way of addition or alteration or omission) as may be necessary to bring that law into conformity with this Constitution and the Constitution of each Region”. (See section 156 of the Constitution for this reference). So that, in effect, whatever laws might exist outside the Constitution section 161(1) prescribes that it will supersede any such laws. The result is that the Court is bound to accede to the provisions of section 161 (1) of the Constitution no matter what any other laws of the country might say to the contrary or in derogation thereof. We think that the learned trial judge was right in concluding that section 161 (1)(c) of the Nigerian Constitution confers an immunity on the 1st defendant and that the action should not have been continued against him since he became the Governor of the Western State during the pendency of the present proceedings. No. question of waiver arises, for the section prescribes an absolute prohibition to “any court” during the period of office of the holder of any of the posts described in section 161(2) of the Constitution to entertain any claim for relief against such person.

In this circumstance, the learned trial judge should have struck out the case of the plaintiff as against the 1st defendant which, in effect, is what he did, although he made no formal order in that respect.

Learned counsel for the defendants did not in the course of his address to us in this Court, contend the issue or claim the benefit of the Constitutional provisions and it is manifest from the way he had argued the appeal and the issues he had canvassed that he was not willing to rely on section 161(1) as precluding the continuance of these proceedings against the 1st defendant. On the other hand, learned counsel for the plaintiff urged that this case should in all respects be dealt with on its merits against all the defendants, including the first, inasmuch as any immunity conferred by the Constitution was not pleaded by the defence. We are of course unable to accept the studied silence on the part of learned counsel for the defendants as well as his indirect suggestion of having waived the benefit of this section of the Constitution; we are also unable to accept the contention which we consider tenuous of learned counsel for the plaintiff suggesting that the absence of pleading on this point is an express waiver of the privilege which the Constitution creates and confers. With respect to the defendants, we are satisfied that the provisions of section 161 of the Constitution are peremptory and admit of no waiver and with respect to the plaintiff we point out that the contention overlooks the introductory words of section 161 of the Constitution which words clearly assert the supremacy of the Constitutional provisions over any other laws including the laws of pleadings.

The case is however different with respect to the other defendants against whom the plaintiff had claimed on her writ as well as in her statement of claim “jointly and severally” with the 1st defendant. In the plaintiff’s amended statement of claim, after referring to the matters of her title and the entry on the land in dispute by the 2nd and 3rd defendants, the plaintiff’s statement of claim avers in paragraph 18 thereof as follows:

“That the defendants admitted the matters referred to in paragraph 16 of this Statement of Claim and disputed the plaintiff’s title to the said land.”

Again, apart from the general traverse in the single statement of defence filed on behalf of all the defendants, this paragraph of the statement of claim was nowhere specifically denied. On the simple rules of pleading, therefore, these defendants had joined issue with the plaintiff’s on all her claims. In any case the plaintiff’s writ claims against all the defendants “jointly and severally”

On the first, second and the fourth grounds of his appeal learned counsel for the defendants argued that the plaintiff’s claim for a declaration of title should have been dismissed and not just non-suited because:

(i) her title is void and not voidable; and

(ii) the title of the defendants is at the worst only voidable.

On the other hand, in his own contention on the cross-appeal (or notice under Order 7 Rule 13) learned counsel for the plaintiff argued that the learned trial judge should have awarded the plaintiff a declaration of title and that the judgement of the High Court was against the weight of evidence. We have already referred to the pleadings of the parties and obviously on the defendants’ pleadings the 2nd and the 3rd defendants had not pleaded any claim to title. But, as pointed out before, at the close of pleadings, they were contesting that issue with the plaintiff and indeed that was one of the grounds of appeal filed on behalf of the plaintiff. In short, they had put the plaintiff to the proof of her title.

Undoubtedly, both sides are in agreement that the radical title to the land in dispute was vested in one Oshoja who died many years ago and whose progeny now exercises dominion over a large tract of land of which the portion in dispute forms a part. This was pleaded in paragraph 6 of the plaintiff’s amended statement of defence. The 1st defendant claims to be owner of the land by virtue of a conveyance dated the 25th July, 1969, from one Ajayi Arubo (alias Karimu Ajayi Arubo) to himself (see Exhibit 30 and Exhibit 35). That conveyance states that Ajayi Arubo was owner of the land in fee simple. His own vendor, Karimu Arubo, originally bought from the Oshoja family by virtue of a conveyance dated the 5th February, 1965 (Exhibit 29 and Exhibit 29A) in which the parties were recited, in the introductory recital, as follows:

”THIS INDENTURE made on the 5th day of February, 1965, between (1) OKE AMINOTU of 56, Isheri Road, Orile Ikeja, Western Region of Nigeria, (2) AYODELE OGISANRIN of 9 Lanbade Street, Orile Ikeja aforesaid, (3) LEMOMU KASUMU BELLO of Mushin, Western Nigeria and (4) LASIS SALU of 24, Alashe Place, Ojuwoye, Mushin” aforesaid for Ourselves and as Principal members and representatives of Iyade-Osoja Family of Orile Ikeja aforesaid (hereinafter called “the vendors” which expression shall include their heirs, legal personal representatives and assigns) of the one part AND KARIMU AJAYI ARUBO of 5, Olumorokun Street, Mushin, Western Region of Nigeria (hereinafter called “the purchaser” which expression shall include his heirs, legal personal representatives and assigns) of the other part.”

On the other hand, the plaintiff claims to have purchased the same land from Alhaji Alii Isiba by virtue of a conveyance dated the 23rd February, 1970 (Exhibit 2) and that conveyance recites that her vendor was “seised of the said hereditaments in fee simple absolute in possession”. The conveyance also recites the title of the plaintiff’s vendor as follows:

“Whereas the hereditaments hereinafter intended to be conveyed forms portion of a large piece or parcel of land originally belonged to the IYADE FAMILY of Ikeja. AND WHEREAS under and by virtue of a Power of Attorney dated the 22nd day of March 1966 and registered 1S Number 18 at Page 18 in Volume 908 of the Lands Registry at Ibadan (now Lagos) one Chief Mohammed 110 (the Olu of Ikeja), Yinusa Salu, Jimo Oke and Nosiru Akanbi Afariogun were appointed the Attorneys of the said IYADE FAMILY.

AND WHEREAS under and by virtue of a Deed of Conveyance dated the 24th day of September, 1967, and registered as Number 31 at Page 31 in Volume 1027 of the Lands Registry in the Office at Ibadan (now Lagos) expressed to be made between the said ATTORNEYS and the VENDOR herein, the VENDOR became seised of the said hereditaments in fee simple absolute in possession.”

The power of Attorney recited was in fact produced at the trial and it was received in evidence as Exhibit 24. In that document, i.e. Exhibit 24, it was recited that the land concerned originally belonged to “one Olo the founder of Ikeja Village” who died some 200 years ago and was survived by “his only child Iyade”. In the same way, the conveyance by virtue of which the plaintiff’s vendor Alhaji Alii Isiba bought, was produced in evidence as Exhibit 22. The conveyance Exhibit 22 also recites the title of the vendors therein as follows:

“WHEREAS the hereditament hereinafter described and intended to be hereby conveyed for an estate in fee simple forms a part or portion of a large tract of land which originally belonged to one Olo the founder of Ikeja Village, who was exercising all right of ownership and possession over it until his death.

WHEREAS the said Olo died intestate about 200 years ago, and was survived by his only child TALIBI who inherited the land under Customary Law. WHEREAS the said IYADE died intestate so many years ago and was survived by her four children namely: AINA OSE, MAKU BALE ILO and OSENATU OGISANRIN who inherited the land under Customary Law.”

So clearly, by both Exhibit 22 the conveyance to the plaintiff’s vendor and Exhibit 2 the plairitiff’s own conveyance, the land in dispute was described as originally belonging to one Olo one of whose descendants was Iyade. It is important to note, firstly, that there is clearly a confusion with respect to the recitals in Exhibit 22 and also that in both sets of assurances, i.e. the plaintiff’s document and the defendants’ document, reference has been made to one Iyade as at one time or the other succeeding his ancestor as the owner of the land in dispute.

The present proceedings were instituted by writ dated the 25th March, 1970, and the original and first statement of claim filed by the plaintiff was dated the 19th May, 1970, and understandably, that statement of claim pleads the original ownership of the land in dispute by Olo who was survived by “his only child named Iyade “. The first statement of defence was dated the 29th May, 1970, and clearly pleaded that the land originally vested “in the Oshoja family (otherwise known as the Iyade Oshoja family)”. Apparently, prompted by these facts, the donors of the power of attorney in Exhibit 24 executed another deed described as an “Indenture Deed of Rectification” and dated the 13th January, 1971, and produced in evidence as Exhibit 25 whereby they agree to alter or amend the recitals in the original power of attorney, Exhibit 24, by deleting the existing recitals concerning Olo and substituting the operative clauses in the new document Exhibit 25. The operative clauses in the said deed of rectification, Exhibit 25, read as follows:

“NOW IT IS HEREBY AGREED AS FOLLOWS:

1. The Principal Power of Attorney shall be read and construed as if the recitals Nos. 3,4, 5 and 6 thereof were deleted therefrom and in place thereof the following recitals were substituted, that is to say:

‘(3) The said large tract of land originally belonged to one Osoja the founder of Ikeja Village who exercised all rights of ownership and possession in and over same until the time of his death.

(4) The said Osaja died intestate many years ago and left him surviving four children, namely; Idowu Aso, Akinlabi, Talabi and Oduboye who immediately went into possession and fully exercised maximum overt acts of ownership in and over same.

(5) The said Talabi also died intestate many years ago and left Iyade her only suiviving child who also went into immediate possession of the said land and exercised maximum overt acts of ownership in and over same.

(6) The said Iyade died intestate many years ago and was survived by four children, namely; Aina Ose, Maku Bale Do and Ogisanrin on all of whom the said land devolved by right of succession. ‘

2. As varied as aforesaid the Principal Power of Attorney and every. Clause thereof shall continue to be binding and in full force and effect.”

Consequent upon this rectification of Exhibit 25, the plaintiff’s own vendor, Alhaji Alli lsiba, and his own grantors executed another “deed of rectification” dated the 9th February, 1971, i.e. Exhibit 23, by which they agreed to substitute corresponding recitals in Exhibit 25 for the original recitals in Exhibit 22 and, in further consequence of this, the plaintiff’s vendor and the plaintiff entered into another deed of rectification dated the 8th April, 1971, i.e. Exhibit 27, by which they agreed to amend the recitals, in the plaintiff’s original conveyance Exhibit 2 by substituting therefore recitals showing that Oshoja was the original owner of the land in dispute. The resultant position as created by this series of exercises is as follows:

(i) If the Power of Attorney Exhibit 24 is read in conjunction with the Deed of Rectification, Exhibit 25, the result is that the donors of the Power of Attorney were acting in respect of the same lands as owned originally by Oshoja and had descended through his issue to one Iyade;

(ii) If the conveyance to Alhaji Alli Isiba, Exhibit 22, is read in conjunction with the Deed of Rectification, Exhibit 23, the result is what the same vendors sold the same land but characterised the land as originally belonging to Oshoja and not Olo;

(iii) If the conveyance to the plaintiff, Exhibit 2, is read in conjunction with the Deed of Rectification, Exhibit 27, the result is that the land sold to the plaintiff by Alhaji Isaba originally belonged to Oshoja through whose line it has devolved on Iyade.

Now, by the amended statement of claim filed on the 24th April, 1971, the plaintiff has pleaded all the documents concerned and in paragraph 6 thereof states that the said land “formed portion of the land which originally belonged to one Oshoja from time immemorial”. As stated before, the defendants in paragraph 4 of their amended statement of defence admitted this. We have already stated that at the trial both sides gave evidence as to the ownership of the land by Oshoja, the plaintiff’s witnesses being Momodu Do, described as the Olu of Ikeja and, by the plaintiff, as the Head of the Oshoja family, and one Jimoh Oke; and the defendants’ predecessor-in-title (show stated that those who had sold to him by Exhibit 29 were principal members and representatives of the family and denied that Momodu Ilo was ever the head of the same family) and one Lasisi Salu. In his consideration of the defendants’ title and the conveyance Exhibit 29, the learned trial judge expressly rejected that title. He said, inter alia as follows:

“I have given adequate consideration to the evidence adduced on behalf of the defence as to the title of Arubo, the predecessor in title of the 1st defendant. I am by no means satisfied about Ambo’s title. Quite apart from the execution of the deed of conveyance Exhibit 29, made by Oke Aminatu, Ayodele Ogisanrin, Lemomu Kasunmu Bello and Lasisi Salu to Karimu Ambo, with which I am not satisfied, is the fact that these persons all come from the Ogisanrin branch of the family. Yet they too conveyed for and on behalf of the Iyade/Osaja family.There was no evidence that the sale was authorised by Iyade/Osaja family or even by the Ogisanrin branch. Members of the Qgisanrin branch of the family who had testified (Jimoh Oke and Sikiru Kasunmu) said that there was no such authority and I believed them. I am also not satisfied with the evidence of Karimu Ambo or his brother Lasisi Salu.”

The learned trial judge refused the application of the plaintiff to yet further amend her statement of claim and then dealt with the several deeds of rectification, Exhibit 23 and Exhibit 27 (and impliedly Exhibit 25), and observed thus:

“I wish now to turn to the deeds of rectification Exhibits 23 and 27. The plaintiff filed her action on 26th March, 1970. The deed of rectification Exhibits 23 and 27 were executed in her favour on 9th February 1971 and 8th April,1971 respectively. The rights purported to have been acquired by her in 1971 did not exist on 26th March 1970 when she was claiming an order for a declaration of title.”

Later, and in the course of determining the same point, the learned trial judge observed:

“In the light of the foregoing it is my view that although the deeds of rectification Exhibit 23 and 27 were admitted in evidence and the pleading of the plaintiff was amended to permit her to let them in, they avail her nothing in so far as the present case for declaration of title is concerned. The rights, if any which she acquired under them did not exist when she filed her action for a declaration of title.”

In coming to that conclusion, the learned trial judge referred to the cases of (i) Blenkhorn vs. Penrose (1880) 43 L.T. 668 and (ii) The Tottenham Local Board of Health vs. Lea Conservancy Board (1885) 2 T.L.R. 410. The cases, in our view, stand on a completely different pedestal and it is right to say that in Blenkhorn’s case, supra, the amendment asked for was in fact granted by the court. In the other and later case the rationale of the decision is that the court would be reluctant in granting an amendment which would constitute a new cause of action. But whilst the reference is apposite with respect to the application of the plaintiff to further amend her statement of claim to plead partition (which application was refused) of rectification which had been fully set out in the plaintiff’s amended statement of claim, the order for amending having been properly sought and made by the learned trial judge himself.

As stated before, learned counsel for the plaintiff argued on appeal before us that the learned trial judge should have awarded the plaintiff a declaration of title.

The learned trial judge decided not to award title to the plaintiff on the grounds described, supra, but we think that he was mistaken. First of all, the cases on which he had based his decision were clearly unhelpful in that regard Secondly, the decision of the learned trial judge overlooked the fact that the plaintiff’s amended statement of claim filed on the 24th April, 1971, fully pleaded her conveyances and the other deeds of rectification, Exhibit 23, Exhibit 25 and Exhibit 27. Speaking about the effect of an amendment of pleadings, Hodson, L.J. observed in Warner v. Sampson & Anor. (1959) 1 Q.B. 297 at p. 321 thus:

“I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. Here the defendant has obtained leave to amend, and there has been no appeal against that order; and, whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties…”

Manifestly, therefore, the plaintiff’s amended statement of claim filed on the 24th April, 1971, spoke in effect as from the date of the original statement of claim and it should be treated as such once the amendment was effected by leave or order of the court. The documents Exhibits 23, 25 and 27 are deeds not of any rectification of the plaintiff’s title or tracing a different title but they are deeds of rectification of the recitals contained in the original documents which the plaintiff always held. She had not thereby set up any newly acquired title or cause of action. What she had altered or amended was the history of the same people who had granted to her the same land. That amended family history is incidentally conceded by the defence and indeed learned counsel for the defendants in the course of the proceedings was willing to assume (and indeed said so) in favour that with the introduction of the deeds of rectification her better title would have been proved. Before the High Court, there was a great deal of argument on whether or not the documents Exhibits 23, 25 and 27 introduced a new cause of action; we are satisfied that they did not and although they were made subsequently to the institution of the present proceedings, all they did was to substitute a new family history of the same grantees.

In the course of his judgement, the learned trial judge described the conveyance to Ajayi Arubo, Exhibit 29, as, in effect, worthless and perhaps worse and it is easy to see that the defendants had flow here met the plaintiff’s case for a declaration of her title. We conclude therefore that the plaintiff should have been awarded a declaration of her title to the land in dispute as against the 2nd and the 3rd defendants and the learned trial judge was wrong to decline to do so.

On the third and fourth grounds of his appeal, learned counsel for the defendants contends before us that the defendants were in prior possession of the land in dispute and that in any case the plaintiff could not have been in possession of the land for any longer than one month before the defendants got on thereto. In arguing this ground of appeal, learned counsel for the defendants referred us to the date of the execution of Ajayi Ambo’s conveyance, Exhibit 29, the defence case of having buried survey pillars on the land, the date when the plaintiff’s building plan was in fact approved by the local authorities as opposed to the date she stated she commenced building on the land and a number of other matters which could be gleaned from the records of the proceedings. These matters are all matters of fact, the evidence concerning which was fully before the learned trial judge whose duty it was primarily to appraise such evidence and ascribe probative values to the various statements. In the case in the defence on the issue of possession and the argument of learned counsel for the defendants, elaborate as it is, must be predicted upon the acceptance of that story by the court. The learned trial judge found for instance that those who had been in possession of the land had sold to Isiba and delivered possession to him. There was clearly the evidence of Momodu not to support this finding. If the evidence of Momodu no on this point is accepted, as indeed it was, the evidence of Karimu Ambo and Lasisi Salu to the contrary must have been considered by the learned trial judge expressly rejected the evidence of these two witnesses.

So it is also with the issue of trespass. As we observed before, it was not specifically denied on the statement of defence although there is the general traverse putting the plaintiff to the proof of all the averments on her statement of claim. At the trial, there is not a single shred of evidence put in by the defence to challenge the story of the plaintiff and her witnesses concerning the incursion of the 2nd and 3rd defendants and their servants and/or agents on the land in dispute, the virtual siege of the area of the land, the widespread destruction occasioned by the pulling down of the plaintiff’s building and stores on the land and the intention to wrest possession from her manifested by the carting away of the building materials she had on the site. On this point, the learned trial judge commented thus:

”The plaintiff’s witness Abiodun Otoki stated that when he appeal to the 3rd defendant and asked why such damage was done on the plaintiff’s property, the 2nd defendant Obikoya butted in, ordered him to clear out or else he would get him beaten up. The 2nd defendant was in court throughout the proceedings but did not give evidence. The 3rd defendant did not give evidence also.

I have considered very carefully the evidence as to what took place on the piece of land in question on 20th March, 1971. As I said earlier it was in a stage of siege by armed soldiers. There can be no doubt that enonnous damage was done to the plaintiff’s property. I have said it before in other cases which I have tried in this court in which armed soldiers were used over pieces of land in private disputes between parties, and I say it again her. No matter who it was that took armed soldiers there-on the land in dispute-it is quite wrong and an affront to civil liberty and ought never to be repeated.”

These are all matters of fact and no argument of any substance had been addressed to us from the bar to warrant our differing with the learned trial judge on the facts as found by him. He found possession and trespass in favour of the plaintiff and we think he was right in this respect.

The learned trial judge made no pronouncement on the claim for injunction, apparently as we opined before because of his views on the issue of title. We think that in the events which have now happened the plaintiff is entitled to an order of perpetual injunction against the 2nd and 3rd defendants who fought the case against her to the end. Incidentally, we point out that although learned counsel for the defendants in arguing this appeal had made the point and assumed it that the learned trial judge made an order of non-suit against the plaintiff with respect to her claim for declaration of title, it is clear, from the records, that the learned trial judge made no such formal order. Anyway, the appeal proceeded and was indeed argued on the basis that the judge did not make any order of final disposal on the claim of the plaintiff for declaration of title.

In the event, therefore, the appeal of the plaintiff succeeds and the appeal of the defendants fails in substance. We make the following orders:

(i) The plaintiff is hereby granted a declaration of title against the 2nd and 3rd defendants as per her claim on her writ of summons. This means that her appeal on this ground is allowed.

(ii) The order of the learned trial judge awarding 600 or N1,200 as damages for trespass against the 2nd and 3rd defendants, is hereby affirmed. This means that the appeal of the 2nd and 3rd defendants against that award is hereby dismissed.

(iii) We order a perpetual injunction against the 2nd and 3rd defendants in the terms of the plaintiff’s writ in this action.

(iv) The plaintiff’s case against the 1st defendant is struck out.

The foregoing shall be the judgement of the Court. We also order that the plaintiff shall have, as against the 2nd and the 3rd defendants in this case, the costs of this appeal fixed at N120.

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Other Citation: (1974) LCN/01348(SC)