Mrs. Ronke Omiyale V. Mobolaji Macaulay (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The respondents were the plaintiffs at the Ikeja High Court of Lagos State. They claimed against the appellant, as the defendant, the following reliefs:-

“1. A declaration that the plaintiffs are entitled to the grant of a statutory right of occupancy in respect of the plan drawn by A. O. Pedro dated 1st September, 1931 attached to the Deed of conveyance dated 20th June, 1932 registered as No. 11 at page 11 in volume 340 of the Register of Deeds kept at Lagos.

ii. N60,000.00 damages for trespass on the said land.

iii. Injunction restraining the defendant, her agents, servants and privies from continuing with the trespass on the said land.”

The parties filed and exchanged pleadings after which the suit was tried by Desalu J. On 19-06-90, the trial judge in his judgment dismissed the respondents’ case. He held that the evidence called by the respondents was insufficient to entitle them to the reliefs they sought. The respondents were dissatisfied and they brought an appeal against the judgment before the Court of Appeal, Lagos Division (hereinafter called ‘the court below’). On 23-1-97, the court below allowed the respondents’ appeal. Judgment was given in favour of the respondents on their claims. The present appellant was dissatisfied with the judgment of the court below. He has brought this final appeal against it. In the appellant’s brief filed before this Court, the issues for determination in the appeal were identified as the following:

“1. “Whether the lower court was right in holding that exhibits M and M1 were not binding on the respondents to constitute estoppel per rem (sic) judicata” Ground 3.

2. Whether the lower court did not misdirect itself on the facts that the location and identity of the land in dispute were not in doubt to justify its holding that the land purchased by Somefun exhibit ‘C’ falls within the land in exhibit C2- Grounds 1& 4.
3. Whether from the facts of this case as contained in the printed record, it can be said that the appellants’ evidence as to whose title to the land in dispute lay in contradictory as against that of the Respondents to justify the holding of the lower court that the appellant has not proved a better title to the land in dispute Grounds 2 and 5.
4. Whether the lower court was right in raising and resolving suo moto, the issue of the validity of the Certificate of Occupancy held by the appellant in respect of the land in dispute and holding that the said Certificate of Occupancy is null and void.Ground 7.
5. Whether given the totality of the evidence adduced at the trial court, the award of N10,000.00 against the appellant as damages for trespass can be justified in law Ground 6 & 8.”

The respondents formulated two issues of their own for determination. The appellant’s issues are more germane. I shall be guided in this judgment by the appellant’s issues. This was a dispute about ownership of land, and it is desirable, for an appreciation of the issues as discussed in this judgment that I briefly discuss the facts relied upon by the parties in support of their contrasting standpoints before the trial court.

In their Amended Statement of Claim, the respondents pleaded that the land in dispute originally belonged to Iyanru Family who had sold the land to one Somefun. The said Somefun mortgaged the land for a loan. He could not repay the loan. The mortgagees then sold the land to one Samuel Rowland Latunji Macaulay who was the respondents’ grandfather and who by his last WILL vested the land in the respondents. Put simply, the respondents relied on the title said to be in the Iyanru Family at the beginning.

The appellant also traced her title to the same Iyanru Family as the respondents did although she referred to the same Iyanru Family as Akeja Oniyanru Chieftaincy Family. She relied on a deed of gift from the said family dated 16th May, 1980. In addition, the appellant relied on two suits ID/292/81 and ID/349/83 both decided at the Ikeja High Court. It was pleaded that one Gilbert Oyenola Ogunro had instituted the first of the suits against one Alhaji Jimoh Arowolo and 3 ors and that judgment was delivered against the said Gilbert Oyenola Ogunro. In the second suit, one Lydia Thomson and another person were said to have instituted a suit against the same Alhaji Arowolo and further, that judgment was given therein against the plaintiffs Lydia Thomson and another. These judgments were relied upon as showing that one Olarokun Family had title in the land in dispute which was superior to that of lyanru Family. Following these judgments, the appellant pleaded that in order to perfect her title she paid N15,000.00 to Olarokun Family on 3-4-77.

There is a measure of ambivalence in the root of title which the appellant pleaded. Whilst in one breadth, she pleaded Oniyanru Family as her root of title, in another she pleaded that she paid N15,000.00 to Olarokun Family following the two suits in which Gilbert Oyenola Ogunro and Lydia Thomson were the plaintiffs. Surprisingly however, she did not plead facts to reveal how Olarokun Family came to own the land. In other words, she jettisoned the source of title of the Oniyanru which she also pleaded.

Now to the issues for determination in this appeal which I intend to consider serially. The first issue for determination is a challenge to the standpoint of the court below that exhibits M and M1 tendered by the appellants to support a plea of estoppel per res judicata were not given consideration by the court below. It is helpful to know that exhibits M and M1 were judgments given by the Ikeja High Court in two cases. Exhibit M1 relates to a suit filed by Gilbert Oyenola Ogunro against Jimoh Arowolo. In the suit Ogunro had been relying on a title said to be derived from Iyanru family whilst Arowolo relied on the title from Olarokun family. Judgment was given against Ogunro by the High Court. The consequence was that the title of Olarokun family was preferred to that of the Iyanru family. Similarly in exhibit M1, the Plaintiff Lydia Thomson had in reliance on the title of Iyanru family brought a suit against Jimoh Arowolo. Judgment was given against Lydia Thomson. Thus, once again the title of Olarokun was upheld as against that of lyanru. These judgments were given on 6/06/86 and 1/10/83 respectively. It was appellant’s case that following these judgments, she paid money on 3/4/77 to acquire, as it were, the interest of Olarokun family.

It was on the basis of the interest acquired by the appellant from the Olarokun family that she raised a plea of estoppel per res judicata against the respondents. The trial court in its judgment upheld the plea at page 241 of the record in these words:

“I prefer and believe the testimony of DW5; Dawodu; that the land in Exhibit ‘P’ belonged to Olarokun family as per judgment of court and that the land in dispute forms a portion of it.