H. Tai Ajomale V. John Ethakpemi Yaduat & Anor (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division which had on the 12th day of May, 1989, allowed an appeal by the plaintiffs against a ruling by Ilori, J. sitting in a Lagos High Court whereby he ordered a stay of execution subject to certain conditions, of his judgment, pending appeal.

In the court of trial the plaintiffs had claimed against the defendants the following reliefs:

“1. A declaration of title to a statutory right of occupancy deemed to be granted by the Governor of Lagos State in respect of the plot of land known as Plot 55 Alade Avenue, in Lawani Balogun Layout at Wasimi Village, lkeja, Lagos State, lkeja District TPA 0314 of 7th March, 1964 and shown in Plan AT/43/66 dated 20th April, 1966 filed herewith.

2. N20,000.00 being Special and General Damages for the trespass continued by the defendant, his servants or agents on the said plot of land in possession of the plaintiffs.
3. An injunction restraining the defendant whether by himself, his servants or agents or otherwise howsoever from further entering, doing or taking away anything from the said plot of land and/or interfering with plaintiff’s rights over the said plot of land.
4. Costs.
5. Possession.”

After full hearing the learned trial Judge on the 18th day of December, 1987, found for the plaintiffs and granted to them the declaration they sought. He also concluded as follows:

“Arising from the facts as found herein, I hold that the defendant’s vendors had nothing to sell when they purportedly resold to Bamigbala Amao the area of land vested in Lawani before the sale to Bamigbala Amao. The plaintiff has established better title to the land in dispute.

I find as a fact that after purchase of the land in dispute, the plaintiff retrained possession but did nothing on the land hence occupiers of neighbouring premises used it as rubbish dump. The land was cleared and fenced up by the defendant but since a trespasser cannot have possession in law; the possession remained throughout in the plaintiffs; whom I hold had no materials or foundation on the land.”

He also found that the defendant was a trespasser, awarded general damages of N1,000.00 against him and granted to the plaintiffs perpetual injunction against him.

The defendant appealed to the Court of Appeal against the said judgment. Thereafter, by a motion dated 24th of December, 1987, he moved the court for another of execution of the said judgment pending appeal. In paragraphs 8, 9, 10, 11 and 12 of the affidavit in support of the motion, he deposed to the following facts:

“8. That I have on the land a building which I occupy with my family and other relations.

9. That I am still indebted to several friends and finance houses for the cost of the building.
10. That my solicitor informed me and I verily believe that there are good and substantial points of law in my favour, for consideration of the Court of Appeal.
11. That if the order restraining me from going into the property in dispute either by myself agent and or servant is executed, it will adversely affect my reputation as a legal practitioner and also expose me and my family to an untold hardship.
12. That the structure of the property which is now duplex building may be altered if the defendant/applicant and his family are ejected.”

In opposition to the motion the second plaintiff filed a counter-affidavit sworn to on the 19th of January, 1988. In paragraphs 6, 8, 9, and 10 of the said counter-affidavit he deposed as follows:

“6. That as to paragraph 9 of the said affidavit, the defendant/applicant during the pendency of this suit surreptitiously constructed the said building fully appreciative of the risk he was taking.

8. That as to the issue of untold hardship which will befall the defendant/applicant’s family deposed to in paragraph 11 of the said affidavit, the defendant/applicant as a Senior Legal Practitioner should have known better not to purport to take “possession” of the land in dispute and during the pendency of the suit.
9. That throughout this dispute-cum-action, the defendant/applicant has conducted himself in a cavalier manner; disregarding the police advice that both parties should not go to the said land to avoid a breach of the peace and whilst the police conducted their investigation.”

I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. In the instant case, from the contents of the above paragraphs of the further affidavit sworn to by the second plaintiff and the portion of the judgment of the learned trial judge quoted above, it appears that the hind in dispute was vacant and undeveloped land at the time the proceeding commenced. The defendant cleared it and fenced it round, commenced a building, rushed it through, and packed into one of the duplex during the pendency of the proceedings in the court of trial. I shall bear these facts in mind in my consideration of this appeal.

Further, the learned trial judge without showing that he adverted to the above facts, granted to the defendant his application for a stay of execution of the judgment. In doing so, he relied on two grounds: