Mrs. R.Y Ajibade & Anor. V. Madam Theodora Ibironke Pedro & Anor (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

On 6/4/92 after hearing appellants’ counsel, this Court did not find it necessary to call upon respondents’ counsel to reply. The appeal was dismissed on the same day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.

The plaintiffs/respondents sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:

“1. Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in the Register of Titles kept in the Lands Registry in Lagos.

2. N1,000.00 damages for trespass committed by the defendants their servants and agents on the said property.
3. An Order of perpetual injunction restraining the defendants their servants and agents from committing further acts of trespass on the said property.”

Particulars of Damages

Sum borrowed N900,000.00

Sum so far expended N10,000.00

at 12% interest per annum

The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led that the property involved in this dispute situate at 142, Bamghose Street, was devised by Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father Pedro Alves who, though originally a native of Ipao in Ekiti Division, had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.

About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975 Mr. H. K. Zollner the son of the 2nd plaintiff/respondent, who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900.000.00 from the Societie Genrale Bank (Broad Street, Lagos, Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr. H. K. Zollner who, in order to facilitate transactions, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quilting the property to enable development to commence, his father the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending Bank was duly informed of this change: documentary evidence of which was lodged with the Lands Registry.

The same year (1980) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro (Alves) and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.

The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They however claim that he is their grandfather, their father lye Faniyi being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the Will- Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no Will and died intestate. They are therefore jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge by way of caution, to the registration of the document retransferring interest in the property to the 2nd plaintiff/respondent.

After hearing evidence of the parties and counsel’s submission on their behalf, the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its provisions demising the disputed property to the 1st plaintiff/respondent and her heirs. Since the defendants had persisted in their claim to joint-ownership of the property, which was concretized by Ist defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.

The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the Court below which after due hearing dismissed the appeal, except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of Appeal per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants”) appealed to this Court.