Hammed A. Toriola & Anor V. Mrs Olushola Williams (1982)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

The appellants were the defendants to an action instituted and filed by the respondent on 26th September, 1970 in the High Court of Lagos State, Lagos – Suit No. LD/631/70 wherein the respondent claimed:

“(1) A declaration of title in fee simple or, alternatively, under Native Law and Custom to all that piece or parcel of land situate and lying and being at Ikorodu Road, Yaba, in Lagos, the said land being more particularly described in the plan attached hereto.

(2) 200 pound as damages for trespass to the said land;

(3) Recovery of possession of the said land; and

(4) An injunction restraining the defendants, their servants/and or agents from continuing or repeating any acts of trespass on the said land.

Pleadings were delivered and the action went to trial on the issues raised in the pleadings. Evidence was called and adduced by the plaintiff/respondent’s case but the defendants/appellants called no evidence before closing their case. Thereafter, learned counsel for the appellants and learned counsel for the respondent addressed the High Court (Agoro, J. ) before the learned trial judge considered and delivered his judgment.

In the reserved judgment, the learned trial judge granted the declaration of title, and made the orders for possession, and of injunction claimed by the plaintiff/respondent. He also awarded damages for trespass. Before granting the reliefs, the learned trial judge in his Judgment commented and concluded as follows:

“I will now consider who between the plaintiff and the defendants have better title to the land in dispute to this action. The plaintiff traced her root of title to the land in dispute to Fasinro Dawodu, Sannit Aboke Bada and Tijani Akiran who by a Deed of Conveyance (Exhibit C) conveyed to Sakariyawo Yaya. The Administrator of Sakariyawo Yaya’s Estate sold to Georgetta Bajulai and Mohammed Sadiq Yaya has confirmed the sale by a Deed of Conveyance (Exhibit C1). Georgetta Bajulai then sold the land in dispute to Abibi Aminu Jinadu by a Deed of Conveyance (Exhibit B). The defendants on the other hand, by paragraph 4 of the amended Statement of Defence, while tracing their root of title to Sakariyawo Yaya, merely relied on a series of purchase receipts none of which was produced in evidence. And the only Deed of Conveyance dated 12th September, 1964, which was mentioned in the pleadings and registered as No. 29 at page 29 in volume 1234 of the Register of Deeds kept in the Lands Registry, in Lagos, was also not tendered in evidence. In any event, under section 16 (1) of the Land Registration Act Cap. 99 Exhibit B would claim priority over the conveyance alleged to belong to the defendants.

“………. In view of the foregoing explanation and on the basis of the evidence which has not been contradicted, I am satisfied that the plaintiff is entitled to a declaration of title and she is hereby declared as owner in fee simple of the land in dispute claimed in the writ of summons…. I am also satisfied that she is also entitled to possession thereof and the plaintiff is hereby granted possession of the land in dispute . . . . .

The plaintiff is accordingly awarded N200 as damages for trespass and the defendants, their servants and/or agents are hereby restrained from continuing or repeating any acts of trespass on the land in dispute.” (Underlining mine)

The defendants appeal against the judgment was varied to exclude the order for possession in view of the success of the claim for damages for trespass and injunction. The concluding paragraph of the judgment of the Federal Court of Appeal brings this out clearly and it reads:

“In the present case, since the learned trial judge was satisfied that the respondent was in possession when the appellants entered and so found, a judgment awarding possession to the respondent is inappropriate. The claim should have been, and it is hereby struck out. To that extent, this ground succeeds but it is of no use to the appellants since in any case, they ought not to remain on the land in view of the order of injunction.”

Still dissatisfied and aggrieved, the defendants have now appealed to this Court to reverse the judgment on grounds which are as follows;