Olaide Ibrahim Vs S.A. Ojomo (Now Deceased) (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The respondents herein were the plaintiffs at the Lagos High Court in suit No. LD/1929/90 where they claimed against the appellant as defendant as per the further amended statement of claim dated 31st March, 1992, and the amended writ of summons dated 15th April, 1992, the following reliefs:

“(a) The sum of Six million Naira being special and general damages for trespass committed by the defendant on their properties at Nos. 42 and 44 Doherty Street, Lagos.

(b) Perpetual injunction restraining the defendant and their agents or privies from further committing any acts of trespass on the said land or intermeddling with the administration of the said property.

(c) An account of all monies collected from the various tenants in the said properties from 1st July, 1987.”

The defendant in his further amended statement of defence denied the plaintiffs’ claim. At the trial each party called witnesses to substantiate its claim or defence. From the pleadings and the evidence led at the trial, the facts of the case may be summarized as hereunder:-

The subject-matter in dispute between the parties is the properties at Nos. 42 and 44 Doherty Street, Lagos which forms part of the estate of Chief Michael Eledumo Ojomo who died intestate on 4th November, 1974. On 24th February, 1975, three of his children were granted letters of administration as administrators and administratrixes of the said properties. The three children are Clement Adegbemisoye Eledumo, Festus Ayodele Eledumo Ojomo (deceased) and Mrs. Adejoke Delano nee Ojomo (PW1). For convenience they will be referred to as the former administrators/administratrixes. Following an application by some of the beneficiaries of the estate of Chief Michael Eledumo Ojomo, the letters of administration granted to the former administrators/administrative dated 24th February, 1975, was revoked by an order of the High Court dated 16th July, 1980, and on 17th October, 1981, fresh letters of administration of the real and personal property of the estate were granted to the following children of the deceased:-

(1) Sunday Adedoyin Ojomo (now deceased); (2) Mrs. Olatomi Orimolade; (3) Mrs. Oyinlola Jimoh; (4) Dr. [Mrs.] Olafenwa Durojaiye who are the plaintiffs in this case and may be referred to as the present administrators/administratrixes.

They initiated the action leading to this appeal against the defendant a property developer who entered into the properties in dispute and commenced redevelopment thereof ostensibly on the agreement he had entered into with some of the former administrators/administrative. The plaintiffs’ case was that upon their father’s death, they let out the properties at Nos. 42 and 44 Doherty Street, Lagos to tenants including one Mrs. Anifowoshe trading under the name Ade Top (Nig.) Ltd. and from all the tenants they realized the sum ofN37,000.00 per annum. Sometime in 1987, without the consent of the family and the beneficiaries who were then of age, the defendant disrupted the tenants of the estate by demolishing the property at No. 42 Doherty Street, Lagos and was threatening to demolish No. 44 Doherty Street, Lagos. It was the plaintiffs’ case that at no time did the former administrators/administratrixes enter into any agreement with the defendant to redevelop the properties as the family never decided to develop same.

The defendant’s case was that he the defendant is a property developer. One Mr. Olusola Cole informed him of the plan to redevelop the properties in question. Mr. Cole arranged for him to hold a meeting with the Ojomo family at Owo. The family interviewed him and asked him to submit a proposal, which he did. The proposal was accepted and an agreement was reached whereby he was to be granted a long term lease to redevelop the properties at his expense and latter rent them and recovers his investment before surrendering the properties to the family. The agreement exhibit D1 was executed by the former administrator/administratrixes consequent upon which he paid the sum of N15,000.00 into the estate account at U.B.A. Broad Street, Lagos. As he was informed there were no tenants in the buildings, he entered into the premises and having found the houses empty, he commenced the demolition of the old buildings in July, 1987. He had demolished the whole of No. 42 and part of No. 44 Doherty Street when Mrs. Anifowoshe the proprietress of Ade Top (Nig.) Ltd. one of the tenants approached him requesting to be taken back as tenant after the reconstruction but as they could not reach an agreement on the rent payable, she sued the defendant but the suit was later discontinued.

Upon the foregoing facts, the learned trial Judge found as a fact that the agreement exhibit D11 was executed by the defendant and two of the former administrators/administratrixes and that the administratrixes Mrs. Adejoke Delano did not sign it and relying on section 4(2) of the Administration of Estates Law, Cap. 2, Laws of the Lagos State 1973 and the case of Yusuf v. Dada (1990) 4 NWLR (Pt. 146) 657, he held that the building lease exhibit D11 was defective. Furthermore, he held that as the Governor’s consent had not been obtained before exhibit D11 was purportedly executed as required by the Land Use Act, No.6 of 1978, the said exhibit D11 was void by virtue of section 26 of the said Land Use Act. However, the trial court accepted that the defendant pursuant to exhibit D11 paid the sum of N15,000.00 into the estate account and held that by that, the defendant had acquired an equitable interest in the properties in dispute and having entered into the properties with the consent and permission of the plaintiffs’ predecessors in office and title an action in trespass cannot be maintained against him. Accordingly, the plaintiffs’ claim was dismissed.

Aggrieved by that decision, the plaintiffs lodged an appeal against it before the Court of Appeal Lagos Division which court in the lead judgment delivered on 15th day of June, 1999, by Oguntade, JCA allowed the appeal and entered judgment for the plaintiffs to whom he awarded N10,000.00 damages for trespass with order of injunction restraining the defendant and his privies from further committing any acts of trespass on the properties situate at Nos. 42 and 44 Doherty Street, Lagos.

Against that judgment of the Court of Appeal, the defendant has appealed to this court. The notice of appeal dated 10th June, 1999, is predicated on eight grounds of appeal which without their particulars read as follows:

Ground 1