O. A. Kukoyi & Ors V. Adiatu Ladunni (1976) LLJR-SC

O. A. Kukoyi & Ors V. Adiatu Ladunni (1976)

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This appeal is from the judgment of the High Court of Lagos State (Kazeem, J.), dismissing the respondents’ claim against the appellant for declaration of title to parcels of land lying and situate at Idi Araba, Ikeja district, and known as plots 150 and 152 in Jemi-Alade Layout, striking out their claim for possession thereof, awarding in their favour the sum of N50 as general damages for trespass and restraining the appellant, his servants and/or agents from further trespassing on the said plots on Jemi-Alade Layout aforesaid.

In order to appreciate the essential points taken on behalf of the appellant in this appeal, attention must be drawn to relevant portions of the statement of claim, these read:- “(1) The 1st named plaintiff is a licensed surveyor, the second a petitioner, and third a trader.   (2) The land which is the subject-matter of the suit (herein referred to as the land in dispute) is that verged RED numbered Plot 152 and GREEN numbered Plot 150 on the plan No. OA1381 attached to this statement of claim and marked ‘X’.

(3) The said land formed part of a large track of land which originally belonged to the Alatishe family from time immemorial (10) Following the demise of the said Babatunde Jemi-Alade in 1961, his administrators who had power to deal with his real estate sold the area verged RED on plan ‘X’ to the 1st named plaintiff under and by virtue of the Deed of Conveyance dated 22nd, July, 1968, and registered as No.72 at page 72 in Volume 1271 at the lands Registry Lagos. (11) The said Administrators also sold the area verged GREEN to the 2nd and 3rd plaintiffs under and by virtue of the Deed of Conveyance dated the 10th day of April, 1968, and registered as No.83 at page 83 in Volume 1271 at Lands Registry Lagos. (12) Immediately after the sales mentioned in paragraphs 10 and 11 above the plaintiffs went into peaceful and undisturbed possession of their respective plots of land exercising maximum overt acts of ownership. (13) The 1st plaintiff had a sign-board bearing his name and address as owner of the plot verged RED nailed to one of the palm trees on the land; (b) used to clear the land periodically; and (c) built a fence round the plot with concrete pillar posts and barbed wire. (14) The 2nd and 3rd plaintiffs (a) had a sign-board bearing their names and address as owners of the plot verged GREEN nailed to one palm tree on the land; (b) moulded cement blocks on the land with a view to erecting a building thereon; (c) cleared the land periodically and (d) built a shed with corrugated iron sheets on the land. (15) Sometime late in December, 1968, the defendant with the assistance of some servants, agents and/or workmen removed the (sic) plaintiff’s sign-boards from the land in dispute and destroyed all the concrete posts, the shed and some of the blocks thereon.

Whereupon the plaintiffs claim as per their writ of summons”. (underlining supplied) The endorsement on their writ of summons reads:- (1) Declaration of title in fee simple to ALL THAT piece or parcel of land situate and lying and being at and known as plots Nos. 150 and 152 Jemi-Alade Layout, Idi-Araba, Ikeja district.  (2) Possession of the aforesaid plots of land (3) £400 as special and general damages for trespass committed on the said land, and (4) Injunction restraining the defendant, his servants, and/or agents from further trespassing on the aforesaid plots of land.

In their evidence in support of their claims, the first respondent referring to the plan (described in their pleadings as marked ‘X’ and received in evidence as) Exhibit A stated that plot 150 (edged Green thereon) is claimed by the second and third respondents and that plot 152 (edged RED thereon) belonged to him. With reference to the trespass by the appellant, he testified thus:-   “After purchasing the land, I was put in possession thereon by one Chief Oguniyi who is caretaker of the land. Thereafter I fenced it with barbed – wire and erected my sign-board thereon. The land was continually cleared every other month by my labour gang. About Christmas 1968, the labour staff went to clear the site and they were led by Adenuga. About 11 a.m. that day, Adenuga came to tell me that he and his men were driven away from the site. As I was thinking of what to do the defendant and another person came to my house in connection with the land in dispute. Later I went to the land in dispute where I found that all my fence on the land had been destroyed. I also discovered that new boundary wire fence had been established along the area of plan which was considered to belong to those persons.”  Testifying in support of their claims, the third respondent claimed that plot 150 (edged Green on Exhibit A) belongs to both the second respondent and himself. They had, since purchasing the land been in unchallenged and undisturbed possession of it and cleared the same of weeds periodically. They had fenced the same with barbed-wire and had deposited moulded cement blocks thereon four thousand of which (valued £134/10.) were destroyed by the appellant and his agents. On this aspect of their claim he was recorded as saying :-   “I know the defendant when he came to our land (i.e. plot 150). Sometime in January, 1969, he came with thugs and destroyed our fence shed and all other things we had on the land. He was then trying to put up a building thereon. The value of the shed we had on the land was £5. The value of the cement blocks destroyed was £134/10/- .”

After a careful review of the evidence before him and a thorough study of the various conveyances before him, the learned trial Judge found against the respondents on their claim for declaration of title to the several parcels and plots of land; struck out their claim for possession of the said plots but awarded in their favour the sum of N50 as damages for trespass and made an order restraining the appellant from entering, or trespassing on, the said parcels of land. In the portion of his judgment relating to trespass the learned trial Judge made the following observations:-  

“The plaintiffs claimed in the writ of summons a sum of £400 (N800) as special and general damages for trespass committed by the defendant. But in their statement of claim they claimed a total sum of £904.3.4d (N1,808.34k) for various items as special damages. However, the evidence adduced in support of the claims for special damages were completely at variance with their pleadings. In the circumstances, I am unable to award any amount as special damages. Since the plaintiffs however succeed in their claim for trespass, I hereby award a sum of N50 as general damages.”

The principal ground of appeal argued before us by learned counsel for the appellant reads:- “The learned trial Judge erred in law in failing to dismiss the plaintiffs’ claim on the ground that the statement of claim does not support the relief claimed in the action.   Particulars (i) The claim in the summons postulates a joint claim whereas the statement of claim alleges that the first plaintiff owns one piece of land whilst the 2nd and 3rd plaintiffs jointly own another piece of land. (ii) In his judgment the learned trial Judge awarded one sum only which was the proper order to make on a joint claim but not on a several claim.”  

The sum of the argument of Chief Williams, learned counsel for the appellant in respect of the above ground of appeal, is that on the evidence before the court as well as the facts pleaded in paragraphs 10, 11, 12, 13, 14 and 15 of the statement of claim the respondents’ claim is, in view of order IV rule 2 of the Supreme Court Rules, – applicable to the case in hand – incompetent. According to learned counsel for the appellant, it is the Rules of court made under Cap.211 of the 1948 edition of the Laws of Nigeria titled “The Supreme Court (Civil Procedure) Rules”. (NOT the Rules of the High Court of Lagos State) that are applicable to this case and we think there is considerable merit in the said argument.

The relevant rule, under the current Rules of court of the Lagos State High Court, is rule 5 of order 15 which reads: “Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant”.  Under the Supreme Court (Civil Procedure) Rules aforesaid (hereinafter referred to as “the former Rules of court” and which can be found in page 16 of Vol. X of the 1948 edition of the Laws of Nigeria), applicable until the 1st day of September, 1973, when the current Rules of the High Court of Lagos State came into force (see Lagos State Legal Notice No.18 of 1973 at Page B94 of Lagos State Gazette of 6th day of June 1973, vol.6), the relevant rule, is rule 2 of Order IV and it reads:-   “Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.”  

It is evident from the pleadings, the testimonies of the respondents and Exhibit “A”, that the parcels of lands plots 150 and 152 (severally verged Green and Red on Exhibit “A”) belong respectively to 2nd and 3rd respondent

Other Citation: (1976) LCN/2221(SC)

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