Mrs. Lydia Omoware Thompson & Anor. V. Alhaji Jimoh Arowolo (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C. 

The action that culminated in this appeal was commenced by the appellants when they took out a writ of summons against the 186 respondent on the 10th day of June, 1983. Following the order that pleadings be filed, the parties duly filed and exchanged their pleadings. The appellants also filed with the leave of the trial court

an amended reply to the statement of defence filed by the respondent. The case was therefore heard on the issues as joined by the parties in their pleadings. The appellants by their statement of claim pleaded thus at pages 4-6 of the printed record: –

“1. The 1st plaintiff is the daughter of one Frederick Ephraim Williams who died testate at Palm Church Street, Lagos on the 12th day of November, 1918 and probate of his will was granted to the two Executors and Trustees named in his will.

2. The 2nd plaintiff is a private limited liability company incorporated under the Laws of Nigeria and having offices at N0.3 Tonode Street, Ikeja, Lagos State.
3. The defendant is the head and represents the Olarokun Family of Orile, Agege.
4. The said Frederick Ephraim Williams (deceased) owned tracts of farm lands along Iju Railway Station, Iju and this formed part of his estate when he died in 1918.
5. Under and by virtue of the Supreme Court Order dated 11th day of March, 1947 in suit No. P21/1918. The Trustees of the said Frederick Ephraim Williams were released from administering the estate and the task was transferred to the Public Trustee appointed for that purpose.
6. By an Order of court dated the 29th day of May, 1961 made in suit No. M/18/61 (after protracted litigation between the Public Trustee and the beneficiaries of the will of the said Frederick Ephraim Williams) the High Court at Lagos ordered that the property of Frederick Ephraim Williams (deceased) be apportioned or partitioned amongst the beneficiaries.
7. Pursuant to the said Order of the High Court and the ensuing apportionment made thereunder a piece of landed property known as plot No. 14 part of the estate of Frederick Ephraim Williams (deceased) situate at Iju Railway Station, Iju in the Ikeja Division of Lagos State was apportioned to the 1st plaintiff.
8. Under and by virtue of a Deed of Assent dated the 5th day of July, 1977 and registered as No. 85 at page 75 in volume 1638 of the Lands Registry in the office at Lagos, the Public Trustee as the legal personal representative of Frederick Ephraim Williams (deceased) vested in the 1st plaintiff all that piece or parcel of farm land measuring approximately 12.85 acres (being the said plot No. 14 in the estate of Frederick Ephraim Williams (deceased) situate, lying and being at Iju Railway Station in the Ikeja Division of Lagos State in fee simple in possession free from all encumbrances.
9. The late Frederick Ephraim Williams was throughout his life in uninterrupted possession and ownership of the farmland of which the land the subject matter of this suit formed a part and so were the Trustees of his estate including the Public Trustee appointed under the Order of court.
10. By a Purchase Receipt Agreement made on 22nd day of January, 1978 the 1st plaintiff transferred her interest in the said plot No. 14 of the estate of Frederick Ephraim Williams at Iju Railway Station, Iju to the 2nd plaintiff (Kosemani Enterprises Limited) in consideration of the sum of N44,000,00.
11. The 2nd plaintiffs (sic) were thereupon immediately put in possession.
12. The defendant and/or his agents on or around went on the said plot No. 14 at Iju Railway Station and committed various acts of trespass on the land by removing the beacons erected by the 2nd plaintiff’s surveyor, divided the land into plots, have sold and continued to sell to various persons who have been erecting buildings on the said land.
13. That despite repeated warnings from the plaintiffs to desist from the said acts, the defendant failed to stop and has continued his act of trespass on the land, the subject matter of this suit.
14. WHEREUPON the plaintiffs claim against the defendant as follows: –

(a) In favour of the 1st plaintiff, a declaration that the plaintiff is the owner of a statutory tight of occupancy to that piece or parcel of land lying and situate at Iju Railway Station, Iju in the Ikeja Division of Lagos State known and referred to as plot No. 14 in the estate of Frederick Ephraim Williams which land is more particularly marked and delineated on a survey plan drawn by one E. A. Ogunbiyi, Esq. a licensed Surveyor, and annexed to a registered conveyance No. 75 at page 75 in volume 1638 in the Lands Registry in the office at Lagos.

(b) In favour of the 2nd plaintiff the sum of N50,000.00 (Fifty Thousand Naira) being damages for trespass when the defendant by himself and by his agents, servants and workmen and privies went on the said land and removed the 2nd plaintiff’s beacons, divided the land into plots sold and continue to sell to various persons who have erected buildings on the said land.

(c) Order of perpetual injunction restraining the defendant his servants and/or agents and privies from entering upon or interfering any further with the land the subject matter of the suit.”

The appellants also filed an amended reply to the statement of defence of the respondent thus: –

“1. The plaintiffs join issue with the defendant on his defence.

2. The plaintiffs deny each and every allegation contained in paragraphs 2 – 8, 10 and 12 – 15 of the statement of defence and put the defendant to proof thereof.
3. In particular denial of the averments contained in paragraphs 2 – 8, 10 and 11 of the statement of defence the plaintiffs state that the land, the subject matter of this suit, originally belonged to Dada Agunwa, Ige Egun Oniye and Oriyomi Balogun who conveyed same to one Frederick Ephraim Williams the father of the 1st plaintiff in this suit by a Deed of Conveyance and the said Deed of Conveyance together with the attached plan will be relied upon at the trial of this suit.
4. The plaintiff will inter alia further rely at the trial of this suit and in proof of their claims in this suit upon a composite plan No. JO/21/85 dated 21st June, 1985 drawn by one J. Olushola Ogunsanya, Esq., licensed Surveyor showing inter alia the extent of the plaintiffs’ said predecessor in title and also the area now being trespassed upon by the defendant.
5. The 2nd plaintiffs further in answer to the averments of the defendants in paragraphs 12 & 13, state that soon after their purchase of the portion of the 1st plaintiff’s land, the subject of this suit, they were put in possession until the intervention and trespass of the defendant the subject of this claim.
6. The plaintiffs thereupon repeat the averments as set out in their statement of claim.”

The statement of defence of the respondent is as follows: –

1. The defendant denies paragraphs 1,2,4,5,6,7,8,9,10, 11, 12, 13 and 14 of the statement of claim specifically and puts the plaintiffs to the strictest proof thereof.
2. The defendant admits paragraph 3 of the statement of claim only to the extent that he is the head of Olarokun family of Orile Agege but denies that he is the sale representative of the family.
3. The defendant avers that he is just one of the four Attorneys of the family with regard to the management, control and alienation of the family land, part of which is now in dispute.
4. The defendant avers that his family i.e. the Olarokun family of Orile Agege is the owner of a parcel of land stretching from Irefu stream in Orile Agege to Abule Egba and Oko-Oba with the Lagos/Abeokuta Railway line as their boundary with Ibari family of Otta.
5. The defendant avers that he has always been on his family land as head of family and not on any other person’s land.
6. The defendant avers that he does not know the plaintiffs’ land talkless of going on their land. And that the plaintiffs have not filed any plan in this case to show their land in relation to the defendant’s land.
7. The defendant avers that his great grandfather Olarokun who migrated from Iga-Iloti in Otta, settled on this land very many years, cultivated and superintended (sic) the land throughout his life time without let or hindrance until his death when he left him (sic) surviving to the estate his five children: Osholesi, Agbaosi, Adejiyan, Aiyelabi and Onumi, who inherited the vast area of land by Yoruba native law and custom. They cultivated, managed and superintended (sic) the land without any hindrance from any source whatsoever until they all died leaving the land to their children who inherited same.
8. The defendant avers that the Olarokun family land is bonded on the four sides by Akinlabi family land of Orile Agege, Ikudoro and lbari family land on Iju Station, Obawole and Iyanru families on other sides.
9. The defendant avers that his family never sold or leased any portion of his land to the first or second plaintiffs; and the alleged vendors of the plaintiffs are no members of Olarokun family.
10. The defendant avers that his ancestors who succeeded Olarokun to the estate had many customary tenants on the land such as, Gboyiki family, Sedimu Adeyemi family, Ogundele Samuel Ogunjobi and Faleti families who paid and still pays tribute to Olaroku family annually; for the use of the land.
11. The defendant avers with specific reference to paragraphs 4, 5, 6, 7, 8, 9 and 10 that the said F. E. Williams had no sanguinary affinity with the defendant family. And that he was a Sierra Leonean who settled and lived in Lagos and had nothing to do with the defendant’s family land in his lifetime.
12. The defendant avers that neither the 1st nor the 2nd plaintiff was in possession of any part of his family land to his knowledge at any time and hitherto .
13. The defendant avers that paragraphs 11, 12, 13 and 14 denied specifically as false and mere fabrications from the plaintiffs’ imagination.
14. The defendant states that his family’s hold on the family land which has endured for over a century has never been challenged by the plaintiffs or their predecessors-in-title before now.
15. The defendant avers that he is not liable to the plaintiffs in the sum of N50,000.00 or in any sum at all, as he was never on his land.
16. WHEREFORE the defendants stated that the plaintiffs claim is speculative, frivolous and vexatious and should be dismissed with costs.”

The appellants called four witnesses in support of their claim, while the respondent gave evidence as DW1 and called eight other witnesses to establish his defence to the action. The trial court dismissed all the claims of the appellants. As the appellants were dissatisfied with the judgment of that court, they appealed to the court below. In that court, their appeal was allowed, but an order was made that the case be heard de novo, by another Judge of the High Court of Lagos State sitting at its High Court at Ikeja. After a review of the evidence and the submissions of counsel, the reasons given for arriving at this conclusion per the judgment of Kalgo, JCA (as he then was) and with which, M. M. Akanbi, JCA (as he then was) and Coomassie, JCA concurred, read thus: –

“There is amply (sic) evidence produced at the trial by both parties but the learned trial Judge has failed to make specific findings of facts on the vital issues involved. In the circumstances, I am of the view that the appeal must be allowed on this score, I so do. But the facts and circumstances of this case are such, that in my respectful view, this court cannot proceed to decide the case on the evidence before the trial court. It is also my considered view, that if the parties are given the opportunity to re-litigate on the matter, none of them will be wronged or prejudiced and no miscarriage of justice will be occasioned thereby. See Ayoola v. Adebayo (1969) 1 ANLR 154 at 162.”

As the appellants were again dissatisfied with the judgment and orders of the court below, they lodged a further appeal to this court. Pursuant thereto, they filed a notice of appeal containing five grounds of appeal which, without their particulars, are as follows:

“1. The Court of Appeal misdirected themselves in law when they failed to make findings on the documentary and unchallenged oral evidence presented by the parties in this case.