Vol * No 119 3rd Mar 08 Adebayo Onile-Ere v. Chief Giwa-Adejimbo & Anr

SQUIB CASE LAW

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT NO. 27(CRIMINAL DIVISION), IKEJA
TODAY WEDNESDAY THE 14TH DAY OF FEBRUARY, 2007
BEFORE THE HONOURABLE JUSTICE M.OLOKOBA-JUDGE
SUIT NO: ID/1357/96
BETWEEN:
MR. ADEBAYO ONILE-ERE }CLAIMANT
AND

1. CHIEF GIWA-ADE JIMBO } 1st DEFENDANT
(for and on behalf of the Sekumade Family)
2. MOSES ALADE JEBUTU } 2nd DEFENDANT

JUDGMENT

This suit was instituted in May 1996 against Oba Sekumade of Ipakodo by the claimant herein claiming by his writ of summons the following reliefs as amended upon the joinder of the second defendant: -

1. A declaration that the plaintiff is entitled to statutory right of occupancy in respect of the piece or parcel of land measuring approximately 2217.26 square yards situate lying and being at Araromi, Ipakodo, Ikorodu, Lagos State now known as Abraham Obafemi Oke Street, Ipakodo, Ikorodu, Lagos State and which piece or parcel of land is shown and delineated in survey plan No. J.F. 334 dated 15th October, 1973 and attached to the indenture of lease dated the 1st day of December, 1975 and registered as No. 28 at P28 in volume 1533 of the Land Registry Office at Lagos;

2. One Million (N1,000,000.00) jointly and severally against the defendants being special and general damages suffered by the plaintiffs for trespass committed by the defendants during the months of March and April 1996 in respect of the said land;

3. An order of perpetual injunction restraining the defendants by themselves, their agents, servants and/or privies from committing further acts of trespass or dealing in any form whatsoever with the said piece or parcel of land.

During the pendency of this suit, the original sole defendant, who became the 1st defendant upon the joinder of the 2nd defendant on the 20th day of April, 1998 died and the present 1st defendant was substituted for him by an order of this court made on the, 31st day of January, 2000.
The claimant filed the last amendment of his statement of claim on the 7th day of February, 2000. The 1st defendant filed a statement of defence dated the 7th day of December, 2000. The last pleading of the 2nd defendant is the 2nd amendment statement of defence dated the 5th day of August, 2004 in response to which the claimant filed a reply dated the 28th day of June, 2004 which reply as seen, predates the amended statement of defence which it purports to respond to, apparently because it was prepared based on the proposed amendment attached to the application to amend served on the solicitor to the claimant. The reply was filed on the 28th day of June, 2004 the same day the application to amend was granted. I do not think however that this circumstance renders the pleadings void.
The case proceeded to trial on the basis of the above pleadings.
At the trial, the claimant gave evidence in support of his own case and called one other witness. The defendants altogether called 3 witnesses.
In his evidence the 1 P. W.; the claimant stated that the land the subject matter of this action is situated at Araromi- Ipakodo Road, now known as Abraham Obafemi Oke Street, Ipakodo, Ikorodu. The parcel of land measuring approximately 2217.26 square metres with the dimension shown in a survey plan No. JF 334 dated the 15th day of October, 1973 attached to a deed of lease dated the 1st day of December, 1975 which was admitted as exhibit 1 formed a small part of a large expanse of land radically owned by one Chief Sekumade which by native law and custom devolved on his children and descendants upon his death.
It was, according to the witness, the accredited representatives of the said Sekumade family, to wit. Chief Sule Jimbo, Chief Kafaru Faniyi, Mustapha Kasali and Chief Tanimowo Bamimosu who by a deed of lease dated the 1st day of December, 1975 exhibit PI granted him a 99 year lease of the said land in dispute.
Upon his being put in possession of the land by the said representatives of the family in the presence of witnesses, he proceed to erect a wall fence around the property and to use the land for the cultivation of various crops. He later erected a structure on the land that got up to DPC level. The building which he was erecting on the land was duly approved by the town planning authorities according to the witness who tendered an approved building plan admitted as exhibit P2 in evidence.
Witness stated further that he continued in undisturbed possession of the land until sometime in 1996 when the Late Oba Sekumade of Ipakodo, the original defendant in this suit aforementioned broke into the land and erected a signboard thereon giving notice that the land belonged to him. He proceeded to erect a structure on the land, partitioning it into two using part of the blocks and sand that witnesses allegedly deposited on the land and proceeded to bring people to inspect the land with a view to selling same with the 2nd defendant being one of such people who later joined the said original defendant in trespassing on the land by building on the foundation already erected by the claimant.
Under cross examination, witness stated that apart from the original defendant who later became 1st defendant before his substitution upon his death, was the only member of the Sekumade family who trespassed on his land and that in fact when he noticed the trespass he reported to members of the family who distanced themselves from the act of the 1st defendant. No member of the family was found by the Police to have connived or colluded with the 1st defendant in the commission of the trespass.
Witness asserted that it was the original first defendant that was noticed to be trespassing on the property. It was later he discovered that he was merely fronting for the 2nd defendant who came later to be joined in this suit. Witnesses asserted that he had developed the land before the trespass complained of.
The 2nd witness for the defence was one Mr. Marceline Augustine Seweje a Licenced Surveyor. He tendered a composite plan of the land which plan he prepared with the survey plans of the two parties. The composite plan was admitted as exhibit P4.
Witness identified exhibit PI as the plan of the claimant with which he prepared the composite plan. The plan of the 2" defendant with which he prepared the composite plan was admitted as exhibit P5. The verdict of the witness after a comparison of the two plans was that the land said to belong to the 2nd defendant fell within the parcel of land said to belong to the claimant.
The 1st witness for the defence is one Mr. Giwa Ade Jimbo. He came to give evidence as the head of the Sekumade family. He confirmed that the claimant was the one the family leased the land to and that he did not know the 2nd defendant. The original defendant was according to the witness a member of the Sekumade family of which he was the head. He denied his family conniving or colluding with the original first defendant in the trespass alleged.
Under cross examination witness stated that he was one of those who went to pray for the claimant on the land when he was laying the foundation of the house he intended to erect on the land. He stated that the total plots leased to the claimant was four plots but the claimant had built on 2 plots of the land already. Witness stated that the family never gave the said late 1st defendant the permission to sell land unilaterally. Witness asserted that as far as he and the entire members of the Sekumade family were concerned the land belong to the claimant.
Witness stated that he was present at a settlement meeting at which the claimant agreed to settle with the 2nd defendant upon payment to him by the 2nd defendant of the sum of N5 million Naira (N5 000,000.00). The 2nd defendant said he could not pay more than N2,000,000.00. Witness denied that administration of land was part of the duties of an Oba. He also denied the Oba being the head of the family. He stated that it was the head of the family who presided over family affairs and whenever a decision had been taken by the family, the head of the family would only report to the Oba what had been done; the Oba could not take any action unilaterally.
The 2nd witness for the defence was one Olayimika Jimbo. He stated than the original first defendant whom he called Laisi Jimbo was the one who sold the land to the 2nd defendant as the Oba (traditional ruler) of the town. He stated that Oba Laisi Jimbo his brother told him that the land had been sold to the 2nd defendant. He was also told the same by Kafaru Faniyi the Late Oba's father. Chief Sule Olatayo Jimbo also told him the same. He stated that the land was taken from the claimant because out of the 4 plots of land leased to him, he developed two and left two undeveloped and this made the late 1st defendant to take the two plots from him and sell same to the 2nd defendant. He stated the Oba had power over the administration of land because the land is that of his forefathers.
Under cross examination however, he admitted that Chief Tanimowo Rufai Bamimosu; Kafaru Faniyi, Chief Sule Jimbo and Mustapha Kasali were the accredited representatives of the family with regard to the administration and disposal of land. He also asserted however the Oba was the person who had authority to sell land. He stated that Oba had no authority to sell his (witness') land. He denied knowing the time the land in dispute was sold.
The 3rd witness for the defence was the 2nd defendant. He stated that it was the Oba and the principal members of the family who sold the land to him and put him in possession. He was given a receipt by the Oba (i. e. the original first defendant) who also helped in obtaining the Certificate of Occupancy. He stated that before the Certificate of occupancy was issued a notice was published in the Lagos Horizon of September, 1996 asking those who had objection to the grant of the Certificate of Occupancy to respond within 21 days. A copy of the newspaper publication was admitted as exhibit D2. The Certificate of Occupancy was admitted as Exhibit Dl. Witness thereafter proceeded to fence the land and erect a building foundation thereon and throughout about 6 weeks which it took him to do this, he did not meet any challenge from any quarter. Witness stated that he had to stop after putting up the fence and the foundation because he did not have money to continue.
Under cross examination witness stated that the land was sold to him by the late 1st defendant along with other principal members of the family. Witness stated that upon the sale of the land to him, he was issued a receipt which he could no longer trace because he handed it over to the late first defendant when he was helping him to process the Certificate of Occupancy. Witness was categorical in saying that he bought the land in 1995 and not 1977. He said he did not know how many plots the land consisted of but that it measured 1097.97 square metres. At the close of the cases for the claimant and the defendants learned counsel filed written submissions.
In his written submissions, learned counsel for the 1st defendant submitted in summary, that the 1st defendant has not in any way been shown to have trespassed on the land in dispute. Learned counsel submitted that the claimant has failed, as it is his duty to do, to show any nexus between present 1st and 2nd defendants in the commission of the trespass complained of. He submitted finally that the claimant has failed to prove his case against the 1st defendant.
In his own written submissions learned counsel for the 2nd defendant identified only one issue for determination.
"When (sic whether) the claimant is entitled to judgment against the 2n defendant in respect of his claims? "
Learned counsel referred to an affidavit sworn to by an attorney of the Sekunmade family dated the 21st day of May, 1997 and submitted that since there was no counter affidavit to it, the claimant is now estopped from giving evidence contrary toil
This submission I should just state here briefly is misconceived. This is because it is the pleadings of the parties that show their case and a party's pleading is binding on it. Fact to be relied upon by the parties must be pleaded. This is in order not to take the other party by surprise. - See Inyang vs. Ebong (2002) 2 NWLR(Pt. 7 51) page 284.
George vs. Dominion Flour Mills Ltd. (1963) 1 SCNLRpage 117
The affidavit referred to by learned counsel did not appear anywhere in the pleadings of the 2nd defendant nor do the pleadings refer, as a matter of fact, to the contents of the affidavit. Learned counsel's submission is therefore discountenanced. Counsel's submission, however forceful and persuasive cannot take the place of facts.
Learned counsel for the 2nd defendant further contended that the evidence of the 2nd defendant to the effect that he bought his land from the Sekumnade family which piece of land measured 1093.970 square metres was corroborated by the 2nd defendant who gave evidence to the effect that he was told by the late original first defendant and other principal members of the family that the parcel of land had been sold to the 2nd defendant- It is the further contention of learned counsel that since at the time that the land was sold to the 2nd defendant he was unaware of any previous sale to anybody else nor was he aware of any other person's interest in the land, he was a bona fide purchaser for value without notice and should be allowed to keep his land.
Learned counsel further submitted that the 2nd defendant was duly issued a Certificate of Occupancy over his 1093.970 square metres by the Governor of Lagos State after the application for same for was advertised in a newspaper and the members of the public who had objections to the application should forward same. There was no objection to the grant and the Certificate of Occupancy was duly issued consequently disentitling the claimant to a certificate of occupancy over the land claimed by the 2nd defendant.
On the claim for damages learned counsel submitted that the claimant has failed to prove his entitlement to it because it was the evidence of the claimant that he met and knew the 2nd defendant for the first time after the 2nd defendant was joined to this suit. Learned counsel submitted that if the 2nd defendant had not applied to be joined as a party the claimant who did not sue him originally could not have claimed anything against him. He submitted that the 2nd defendant committed no trespass as he was duly put into possession by the Sekumade family. Learned counsel submitted finally that the 2nd defendant is lawfully in possession of his land having been issued a certificate of occupancy in respect of same and the claimant's claims should be dismissed.
Learned counsel for the Claimant in his written address submitted that Exhibit P1 is proof that the land was leased to the claimant by the Sekumade family. Both parties agree that the land originally belonged to the Sekumnade Family. Citing Section 16 of the land Instruments Registration Law of Lagos State learned counsel submitted that the registration of exhibit PI is effective as notice to the whole would of the interest of the claimant. In the event therefore, submitted learned counsel, the family having divested itself of its interest on the land had nothing to pass to the 2nd defendant - Nemo dat quo non habet.
On the other hand submitted learned counsel there is no credible evidence proceeding from the defendant that the parcel of land claimed to have been sold to the 2nd defendant was ever legally or properly sold to him.
TO BE CONTINUED…