Emmanuel Jiaza V. Hassan Bamgbose & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

This appeal is from the Court of Appeal (Lagos Division). The proceedings were commenced in the High Court of Lagos where the plaintiff claimed against the original defendant Busari Bamgbose for general damages for trespass into his property lying and situate at 29 Oyebo Street Araromi, Apapa, possession of the said building and premises and perpetual injunction restraining the defendant his servant and agents from continuing his acts of trespass.

At the trial court, the learned trial Judge duly ordered pleadings. Consequently, pleadings were filed and exchanged. The defendant also filed and served an amended statement of defence with leave. The plaintiff filed a reply to the original statement of defence. But before then the plaintiff, with the leave of the trial court, had the claim for possession withdrawn and it was duly struck out.

During the hearing before the trial court the parties called witnesses and several documentary exhibits were tendered and admitted. The case for the plaintiff is that in 1959 he obtained a leasehold of a piece of land situate and lying at No. 29 Oyebo Street, Araromi, Apapa from the Oluwa Chieftaincy family. The plot of land was allegedly granted to him through one Chief Asafa Oluwa who was described as the representative of the family. The plaintiff claimed he made an initial payment of 60.00pounds (N120.00) and also paid the annual rent of 1.10pounds (N3.00). He claimed that he paid the annual rents for the period 1959 to 1962 and obtained a receipt. After the land was shown to him he cleared the bush and had his sign board on it. In 1960 he commenced the construction of a building on it consisting of 11 rooms and one shop in accordance with an approved building plan. By the time he left Lagos in 1967 for the East because of the political disturbances that raged in the country at the lime, the building had been constructed to window level. Before he left, he had in 1963 caused the land to be surveyed and obtained a survey plan. exhibit C. Upon his return to Lagos sometime in 1970, he discovered that the defendant had trespassed into his properly. He immediately challenged the defendant as to his right to the land; but the defendant ignored him. Though he reported the matter to the Police. he had to commence this action against the defendant to assert his right.

The case for the defendant would appear to be that he has no interest of any kind in the parcel of land at No. 29 Oyebo Street, Araromi, Apapa, the subject matter of this litigation. He claimed that his own plot of land is at No. 33 Oyebo Street which he acquired in 1969 from Chief Oluwa of Lagos. The land so acquired was, according to the defendant. vacant at the time of his acquisition. Later he obtained a deed of lease from the family. Following necessary payments to the family, he commenced building a house of 12 rooms and one shop on the land. Throughout the period during which the house was under construction in 1969, he claimed that no one disturbed him or his contractor on the land. The building has since been completed and he has been living there with his family.

At the end of the trial of this matter before the High Court, the learned trial judge reviewed the evidence before him. Following the address of learned counsel appearing for the parties, the learned trial judge delivered a considered judgment.

By that judgment, the trial court upheld the plaintiff’s claim having formed the view that the land in dispute is the same as claimed by the parties in spite of the different descriptions given by the parties as to the location of the land. The learned trial Judge further formed the view that the lease to the defendant was executed on the 26th October, 1970. He also held that the plaintiffs structure was on the land when the defendant obtained the deed of lease and that it was the plaintiff’s structure that he eventually built upon. The learned trial Judge therefore took the view that the defendant could not have obtained his interest in the land through the deed of lease without notice of the prior equitable interest of the plaintiff. The learned trial Judge then held that the deed of lease relied upon by the defendant and which was registered a couple of years after the plaintiff was let into possession cannot override the plaintiff’s equitable interest.

Being dissatisfied with the judgment and orders of the trial court the defendant appealed to the Court of Appeal (Lagos Division).

The learned Justices of the Court of Appeal after due consideration of the issues raised before that court concluded in their judgment that the plaintiff failed to establish how he became seised of the disputed land. On the other hand, it was held that as the defendant had established by evidence on the record how he was granted the lease of the disputed land, and by whom, the learned trial judge ought to have found that fact in his favour. The judgment and orders of the trial court which were made in favour of the plaintiff were therefore set aside.

As the plaintiff was not satisfied with that judgment of the Court of Appeal (Lagos Division) he has appealed to this court. Pursuant thereto four grounds of appeal were filed on his behalf. However, with the leave of this Court the plaintiff (who shall from henceforth be referred to as the appellant) filed an amended Notice of Appeal consisting of three grounds of appeal. Subsequently, his learned Counsel, H. O. Ajumogobia Esq., filed and served the appellant’s brief. The defendant died during the pendency of this appeal and was, by virtue of the High Court of Lagos State substituted by Hassan Bamgbose and Seliatu Bamgbose, who are now the respondents. P.O. Jimoh Lasisi Esq., filed on their behalf a respondent’s brief.

At the hearing before this Court learned counsel appearing for the parties adopted and placed reliance on their respective briefs of argument.

Learned Counsel also made further submissions in elaboration of the arguments in their respective briefs. I will in the course of examining the issues identified in the briefs consider also the submissions made before the court.

In the appellant’s brief of argument, the following are the issues identified for the appellant for the determination of the appeal:-

(1) Whether the learned Justices of the Court of Appeal were not in error in holding that the case dealt exclusively with the acquisition or transfer of family land by lease, when the appellant’s claim was based on trespass and found upon his possession of the said land.