Ganiyu Kale V. Madam T. Coker And Ors (1982)

LawGlobal-Hub Lead Judgment Report

A. O. OBASEKI, J.S.C. 

The appellant was the defendant in Suit No. IK/162/68 instituted on the 4th day of December, 1968 by one Emmanuel Iyiola Oniteru (deceased) now substituted by the respondent and one Madam Tayo Coker as plaintiffs in the High Court of Lagos State, Ikeja, claiming:

“(1) 200.00 damages for trespass to their parcels of land lying and being at Orona Street, Oshodi, Ikeja, in respect of which they are leasehold owners; and

(2) injunction restraining the defendant from further acts of trespass.”

Pleadings were filed and served and the issues joined eventually came up for trial before Ishola Oluwa, J. At the conclusion of the hearing, Ishola Oluwa, J., in a well considered judgment delivered on the 20th day of June, 1979 found in favour of the respondent. He awarded the respondent N200.00 (Two Hundred Naira) damages for trespass in respect of the two plots to which Omiteru (deceased) was entitled as shown in the composite plan Exhibit ‘E’ and made an order of perpetual injunction restraining the appellant from further acts of trespass in respect of the said land shown in Exhibit ‘E’ and therein edged red and comprising plot ‘C’ and plot ‘K’.

The defendant was dissatisfied and unsuccessfully appealed to the Federal Court of Appeal (Adenekan Ademola, Nnaemeka-Agu and Uthman Mohammed, JJCA.). In the judgment delivered by Uthman Mohammed, JCA. and concurred in by Adenekan Ademola and Nnaemeka-Agu, JJCA., the learned Justice of the Court of Appeal said:

“I entirely agree with the findings of the trial Judge where he said:

“The issues in this case fall into the usual groove. The plaintiff was in possession while the defendant disturbed the possession; the defendant claims he has right to do so because he has a deed. But in this case the family itself by its Head and one of the Arotas had put plaintiff in possession and leased the land to him. The family had nothing to transfer by Exhibit ‘G’ to the defendant. The defendant leased nothing from the family for the period it purports to do so.”

I agree with the conclusion of the learned trial Judge that the first plaintiff had no case against the defendant since the defendant was not on the land of the 1st plaintiff.

Accordingly, the appeal fails and it is hereby dismissed.”

The appeal now before this Court is against that judgment. The two grounds canvassed before us both in appellant’s brief and orally by counsel are as follows:

“(1) The Federal Court of Appeal misdirected itself in law and on the evidence when in upholding the judgment of the High Court it failed to observe that although the plaintiff pleaded in paragraph 2 of the amended statement of claim that “by separate agreement dated 11th November, 1959 the Oshodi and Arotas family leased the plaintiff for a term of 25 years at a premium of (28 pounds) N56.00 and ground rent of two Naira (N2.00) per annum, each parcel of land measuring 50 X 100……..” the evidence produced and tendered in proof of such lease was Exhibit A which is inadmissible.”

PARTICULARS

The document is inadmissible in evidence by virtue of Section 15 of the Land Instrument Registration Law Cap. 64 Laws of Lagos State.