M. O. Badejo & Ors. V. R. A. Sawe (1984) LLJR-SC

M. O. Badejo & Ors. V. R. A. Sawe (1984)

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This appeal appears a simple one to me for determination. The plaintiffs who were the descendants of one Sule Adebola Oshuntubo took action in the High Court of Lagos claiming N500.00 damages for trespass to a piece of land known as Plots 86 and 87 in Chief Ajao’s allotment at Obele, Igbodo Mushin and an injunction restraining the defendant/his agents and/or servants, from trespassing on the said land.

The trial judge, in a relatively short judgment dismissed the case of the plaintiffs holding that the plaintiffs did not plead possession. But he held that

“as if it were simply a case of titles, it would have been an easy walkover for the plaintiffs; I would not have hesitated in declaring them the owners of the land. But the claim I have before me is trespass and injunction, and because the defendant has a weak title and no title to the land in question does not relieve the plaintiffs of establishing a case of trespass.”

The respondent has not appealed against the above finding of the learned trial judge. All that the learned trial judge was saying was that he had found that title was vested in the plaintiffs but that they, not having pleaded possession, must lose on the issue of trespass. The question before the Court of Appeal was whether the trial judge was right that the plaintiffs not having specifically pleaded possession, deserved to lose when title was found to be vested on them.

The law, clearly, is that proof of ownership is prima facie proof of possession, unless there is evidence that another person is in possession. In England v. Palmer 14 W.A.C.A. 659 at 660 it was laid down by the West African Court of Appeal that in a trespass action an averment of ownership is consistent with, and amounts to, an averment of possession.

The principle in Lows v. Telford (1876) 1 App.Cas. 414, at 426, which is accepted in our law, has been that where there is a dispute as to which of two persons are in possession, the presumption is that the person having a title to the land is in possession.

Having found that the plaintiffs had title to the land on the evidence before him, the learned trial judge should certainly have found that the averment of title by the plaintiffs amounted to one of possession. The trial judge was, therefore, clearly wrong in holding that the non-specific pleading of possession by the plaintiffs in all the circumstances, disentitled the plaintiffs from succeeding. That was the only issue which the Court Instead, it went into other matters which were not matters properly before it.

One matter which emerged from the evidence was that one Otuyelu, of counsel, who appeared for the defendant was the one who, as solicitor, prepared the deed of conveyance, exhibit G. The document showed that two of the plaintiffs Gafaru Oshuntubo and Jimoh Adeoyin Oshuntubo signed the deed of conveyance.

Both testified on oath before the trial judge and denied they signed the document or ever took part in the conveyance. In the course of the hearing Otuyelu told the trial judge.

“We are not resting our case on exhibit G. It is to be discountenanced.”

The role of Mr. Otuyelu in the transaction was, in my view, reprehensible.

The Court of Appeal had made adverse comment against the lawyer, Mr. Otuyelu. This was what the Court said:

“But before leaving this judgment, a few remarks will not be out of place here. The conduct of the solicitor who prepared Exh. G, the conveyance the respondent relied upon for his title is to say the least very unbecoming. It is revealed in evidence that the parties who signed, if at all they existed, Exh. G in favour of the respondent, did not sign before the legal practitioner as Exh. G purports to say.”

By reason of the serious and apparently unprofessional conduct of Mr. Otuyelu, I would order and hereby order, that the record of proceedings in this appeal be sent to the Disciplinary Committee established under S.9 of the Legal Practitioners Act, No. 15 of 1975 for the Committee to deal with the apparently unprofessional conduct of Mr. O. A. Otuyelu who was at the time at No.11, Abibu-Oki Street, Lagos, with a view to disciplining him under that Act or under any other Law relevant.

I am clearly of the view that this appeal deserves to succeed. Accordingly, I would allow this appeal and hereby allow it. The plaintiffs were entitled to succeed against the defendant in trespass. The trial judge, Dosunmu, J., however is now not in the High Court but is now a member of the Court of Appeal. There will be no point in sending the case back to him to assess damages. I would award the plaintiffs nominal damages in recognition of the break by the defendant of their close. The sum of N100.00 is hereby awarded.

The plaintiffs are also entitled to their injunction against the defendant. I hereby grant a perpetual injunction restraining the defendant from, in anyway, interfering with plots 86 and 87 clearly shown and delineated in plan No.GF/986 dated 20 29th May 1978, admitted in evidence as exhibit D in this case and therein verged blue.

The plaintiffs are also awarded the costs of this appeal which I assess at N300.00. I hereby set aside the costs awarded by the High Court and the Court of Appeal against the plaintiffs and in their place award plaintiffs/ appellants costs in the High Court assessed at N150.00 and in the Court of Appeal assessed at N200.00.

Other Citation: (1984) LCN/2218(SC)

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