Alhaji Abdul Rafiu Olabosunbo Dawodu & Ors V. Alhaji Musibau Majolagbe (2000)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

In the court below, High Court of Justice, Lagos (Coram Silva J.) the appellants as plaintiffs, before that court claimed in a representative capacity against the respondent who was the defendant before the court below as follows:

(1) The plaintiffs, as Head and Principal Members representing the families of MADAM MORIAMO DAWODU (Nee Agoro) and SULE AGORO, claim against the defendant a declaration that they are the owners and persons entitled by devolution to hold, enjoy and deal with as registered proprietors all that piece or parcel of land situate, lying and being at and known as Nos 8, 10 and 12 John Street Lagos which said piece or parcel of land is vested in their ancestors namely SABITIYU AGORO, MORIAMO AGORO (later known as MORIAMO DAWODU Nee Agoro) and SULE AGORO by virtue of a Deed of Indenture dated 30th September, 1941 Land Certificate Title No. LO 0701 at Lagos.
(2) An order of perpetual injunction restraining the defendant his agents, servants and privies and/or any person(s) in that behalf from further trespassing and/or committing acts of trespass on the plaintiff’s said family land.
(3) An order to demolish the foundation and structure already illegally erected and put on the plaintiffs’ land which is the land in dispute and that the defendant should bear the cost of its demolition.
(4) The sum of N1,000,000.00 (one million naira) being special and general damages for the financial loss suffered by the plaintiffs’ family and for the acts of defendant’s trespass.

Pleadings, with the leave of the court, were amended by the parties and exchanged between them. A quick reading of the pleadings settled by the parties shows that title is in issue and that both parties are relying on documents in support of their conflicting contentions of ownership of the landed property. The law is well settled by judicial authorities that once there is a document evidencing the sale of landed property, oral evidence of sale will be excluded and question as to what land was sold has to be resolved by reference to the documents tendered in evidence. See (1) OLAOYE V. BALOGUN (1990) 5 NWLR (PT.148) 24 and (2) ABIODUN & ORS V. ADEHIN (1962) 1 All NLR 500; (1962) 2 SCNLR 305. So whatever may be the contradictions in the oral testimonies of the parties such will not affect the evidential value the documents tendered would attract. Such documents tendered speak absolutely for themselves. Evidence was led by the parties in proof of the various averments in their amended pleadings, and the addresses of their respective counsel were taken by the trial Judge. In a reserved judgment, the trial Judge dismissed, the plaintiffs/appellant’s claim in toto.

In the concluding part of the judgment be held inter alia:

“As regards No. 12 John Street, Lagos, learned counsel submitted that the defendant did not plead anything about No. 12 John Street, Lagos. This is not correct. In his amended statement of defence, the defendant pleaded
in paragraph 2 as follows:-

“This defendant avers that the plaintiffs have nothing to do with the parcel of land now known as No. 12, John Street, Lagos now the subject-matter of this action”.

There is evidence in support of this averment which to a large extent supported by the conveyance Exhibit 7. There is an indication in Exhibit 7 that No. 12 John Street. Lagos was partitioned between Lamina Dabiri and Abiodun Dabiri. Lamina sold his portion to Aromashodu who mortgaged it to Wright Estate. Lamina’s portion of No. 12 John Street, Lagos was eventually sold by Wright Estate to the ancestors of the plaintiffs. The portion of No. 12, John Street. Lagos which belonged to Abiodun Dabiri is the portion which the defendant is said to have started building upon. This has not been seriously challenged by the plaintiff and indeed, it is to a large extent confirmed by the evidence of 1st plaintiff’s witness.

Mr. Talabi cannot be correct when he submitted in effect that the plaintiffs’ claim to title has been made under native law and custom and must therefore be proved by traditional evidence. I agree with Mr. Dawodu that even though the plaintiffs inherited the land from their ancestors, various Deeds of Conveyance and Title documents are available and have been tendered and relied upon. There is accordingly no need for proof by traditional evidence.

From the facts placed before me, I accept that the defendant has not trespassed on Nos 8 and 10, John Street, Lagos. I also accept that the construction work started by the defendant was on the portion of No.12 John Street, Lagos which did not form part of what was sold to the plaintiff’s ancestors.

It is therefore my judgment from the foregoing that the trespass by the defendant has not been proved by the plaintiffs. The part of No 12 John Street, Lagos which was not sold to Agoro family and which does not belong to them is what the defendant is trying to develop.”

Dissatisfied with the said judgment, the plaintiffs/appellants entered a Notice of Appeal which carries five grounds of appeal. The appellants identified two issues which, as set out in their brief of argument, are in the following terms:-
(1) Whether based on the oral or documentary evidence before the trial court, the trial court was right when it held that No. 12 was partitioned into two; i.e. 12 and 12A and that the defendant was building on 12A which portion does not belong to the plaintiffs.
(2) If the finding of the trial court in (1) above is erroneous, whether judgment should not have been entered in favour of the plaintiffs.

The respondent, through his brief of argument raised three issues and they are:-

(1) Whether these plaintiffs are duty bound to identify precisely and clearly the parcel of land the subject-matter of this action and whether it is the duty of these plaintiffs to rely solely on their pleadings and the evidence led in support of same the weakness of the defendant’s case notwithstanding.
(2) Whether paragraphs 6 and 11 of the plaintiff’s amended statement of claim … are in support of the evidence of PWI and PW2…wherein the PW1 stated as follows:

“It is true that we have put up a story building on our own portion of No. 12 John Street, Lagos…”

PW2
“The whole of No 12 John Street, Lagos was built upon in 1991 and whether the Honourable Court could be called upon to ignore or discountenance this piece of evidence”.
(3) Whether Ex. 7 can or should be given a different interpretation different fram the apparent one contained therein and whether the material contradiction in the pleadings and the evidence led by the plaintiffs would not be a sufficient reason to call for the dismissal of this appeal.

When this appeal came before us on 21st June, 2000, Prof. Kasunmu S.A.N. learned counsel for the appellants adopted the brief of arguments of the appellants filed on 3/7/98 and urged that the appeal be allowed. Chief Talabi, learned counsel for the respondent adopted the respondents brief of argument filed on 2/12/99 and urged that the appeal be dismissed. The plaintiffs/appellants case is predicated on paragraphs 4, 6, 7, 8, 9, 10, 11, 14, 15A, 16 and 17 of the amended statement of claim; the summary of which is as follows: Sabitiyu Agora, Moriamo Agoro (who was later known and called Madam Moriamo Dawodu (nee Agoro) and Sule Agoro;  all of who are now dead, became the owners of the property styled as Nos 8 and 12 John Street, Lagos by virtue of a Deed of Conveyance dated 30th September, 1941 and Lands Certificate Title LO 0701 dated 31st March, 1941 both of which were tendered as Exhibits P1 and P2 respectively. The first plaintiff/appellant is the eldest surviving son of Madam Moriamo Dawodu, the second plaintiff/appellant is the eldest surviving son of Sule Agoro while the third plaintiff/appellant is the eldest grand-child of Madam Moriamo Dawodu. Sabitiyu Agoro died intestate. Upon the death of Madam Moriamo Dawodu and Sule Agoro, the appellants as the head and principal members of the Dawodu family and Agoro family became the persons authorised to deal with the family lands which include the land in dispute. Their ancestors, before their deaths, had granted a lease of the demised land being Nos 8 and 10 John Street, Lagos to Societe Commerciale De Quest Africa (S.C.O.A.) by virtue of a Deed of Lease dated 20th/2/47 which was tendered in evidence as Exhibit P3. Upon the death of their ancestors, the land devolved on the appellants and other descendants of the deceased persons. Upon repossessing the property from S.C.O.A. by virtue of a Deed of Surrender tendered as Exhibit P4, the appellants entered into a negotiation with a developer for the purpose of developing the said land in commercial complex. It was at this stage that they sighted the workers of the defendant trespassing on the said property.

The defendant/respondent’s case is explained by the averments in paragraphs 2, 3, 7, 8 and 9 of the amended statement of defence. In a nutshell, the case of the respondent is that the land in dispute which he styled as No. 12 originally belonged to one Dada Omoyemi under the native, law and custom. Omoyemi begat Fatima Dabiri and Lamina Dabiri who, in turn, begat Sunmola Abiodun Dabiri and Lamina Dabiri. But in paragraph 5 of his pleadings the defendant/respondent averred that Fatimo Dabiri died intestate in 1919 and consequently the property devolved on Sunmola Abiodun Dabiri and Lamina Dabiri under the native law and custom. They both later had the property partitioned between them. Lamina Dabiri sold his portion of the partitioned property to one Aromashodu – Exhibit 7 is the deed of conveyance witnessing the sale by Lamina Dabiri to A.A. Aromashodu. The defendant/respondent laid claim to the portion partitioned to Sunmola Abiodun Dabiri by an assignment from Cardoso Dabiri Raliat Dabiri and Usman Dabiri all of who were the grand-children of Sunmola Abiodun Dabiri. The plaintiff/appellant in his evidence-in-chief before the court below said inter alia:

“In 1928, one Aromashodu mortgaged No. 12, John Street Lagos with Wright’s Estate; thirteen years later, as a result of default of Aromashodu, No. 12 John Street, Lagos along with Nos 8 and 10 were sold by Wright’s Estate to our ancestors. The lawyer who carried out the sale was Mr. Eric Moore.”

Exhibit 6 is the instrument by which the property styled as No. 12 John Street, Lagos was mortgaged to Eric Olawolu Moore a Solicitor to Wright’s Estate. Exhibit 1, the deed of conveyance dated 30th September, 1941 is the instrument by which Eric Moore conveyed the property Nos 8 and 12, John Street, Lagos to the ancestors of the plaintiffs/appellants. By the recital in Exhibit 6, what was mortgaged to the Wright’s Estate by Aromashodu is described in the following terms:-

Now this Indenture Witnesseth that in consideration of the sum of 150.00 sterling to the said Mortgagers paid by the said Mortgagee on the execution of those presents (the receipt whereof the said Mortgagor do hereby acknowledge) the said Mortgagors as BENEFICIAL OWNERS do hereby grant and convey unto the said Mortgagee his heirs and assigns firstly, ALL that piece or parcel of land with the measuages and other buildings thereon and being at No.8, John Street, Lagos and as the same is with its dimensions and abuttals particularly described and delineated in the map or plan drawn at the foot of those presents and is therein coloured yellow and secondly, ALL that piece or parcel of land with the shed thereon situate and being at No 12, John Street, Lagos, Nigeria aforesaid and the same with its dimensions and abuttals particularly described and delineated in the map or plan drawn at the foot of these presents I and is therein coloured yellow……………….”

As I observed above, the entire property which Lamina Dabiri conveyed to A. A. Aromashodu by virtue of a Deed of Conveyance dated 30th November, 1927 and Registered as No. 49 at page 49 in Volume 229 tendered as Ex 7 is No 12, John Street, Lagos. And Wright’s Estate became the Mortgagee of the same property (No. 12, John Street, Lagos) through their Solicitor, Eric Moore with Aromashodu as the Mortgagor. I have earlier in this judgment said that the ancestors of the appellants became the beneficial owners of the measuages and buildings situate at Nos. 8 and 12 John Street, Lagos by virtue of a deed of conveyance dated 30th September, 1941 executed in their favour by Eric Olawolu Moore as Receiver of Wright’s Estate. That Indenture was tendered as Exhibit 1; the recital which is descriptive of what was conveyed, read:

Now this Indenture witnesseth that in pursuance of the said sale and in consideration of the said sum of two hundred pounds (?200.00) sterling paid by the said purchasers to the said vendor through his agent Mr. A.o. Beckley, the Auctioneer conducting the said before the execution of these presents (the receipt of what sum the said Vendor doth hereby acknowledge). He the said vendor as Mortgagee in the exercise of the power conferred on the said Mortgagee in the said Deed of Mortgage and by virtue of the Conveyancing Act 1881 and of all other powers doth hereby grant and convey unto the said purchasers their heirs and assigns ALL THOSE to pieces or parcels of land with the measuages and other buildings thereon situate and being at John Street, Lagos and known as Nos 8 and 12 John Street, Lagos respectively, in the Colony of Nigeria aforesaid and the same is more particularly described and delineated with its respective dimensions and abuttals on the Maps or plans drawn at the foot of these presents and thereon coloured yellow respectively.”

It is clear that, from the recitals quoted in Exhibit 6 that the landed property styled as Nos 8 and 12 John Street, Lagos were mortgaged jointly by Mustafa Giwa Aromashodu, Rufai Aromashodu, Abdulai Adeshiji Aromashodu and Raliatu Aromashodu to Eric Olawolu Moore as Solicitor to Wright’s Estate. Aromashodu had earlier become the owner of the landed property known as No 12 John Street, Lagos, by virtue of Exhibit 7. While by Exhibit 1 the predecessors of the appellants became the joint owners of the said property. And Exhibit 2; the Landed Certificate issued by the Lagos State Land Registry, described the land conveyed to the predecessors of the appellants in Exhibit 1 as plot 8, 10 and 12 John Street, Lagos. The issue of the death of the predecessors of the appellants was never disputed.

And so also is it beyond argument that the appellants inherited the land along with other descendants and that those prosecuting the case are the accredited representatives of the family. Suffice it to say that all the title documents I referred to above were tendered by the 1st P/W Abudu Rafiu Olasumbo Dawodu, the 1st appellant. In an attempt to debunk the claim to ownership of the said property by the appellants the only witness called by the defendant, are Kayode Disu said in his oral testimony:-

I know No.8, John Street, Lagos. I also know No. 10 John Street, Lagos, Nos. 8 and 10 John Street, Lagos are owned by Dawodu and Agoro Families. I know No 12, John Street, Lagos. It is situate next to No.10……..
There is No 12, John Street, Lagos and No. 12A, John Street, Lagos. No. 12. John Street. Lagos also belongs to Dawodu and Agoro families. There is a building by Dawodu and Agoro families at No.12A John Street, Lagos. No 12A, John Street, Lagos is also the property of Dawodu and Agoro Family. Their name is even written on the building … The original owners of No. 12, John Street. Lagos was Dada Omoyemi who is dead.
I have seen documents relating to No. 12 John Street, Lagos before ……..
I can recognise the Deed of Conveyance if I see it (Counsel identifies Exhibit 7). Abiodun Dabiri had only one child named Cardoso Dabiri.
Cross-examined he said:
I do not have any document relating to No 12 John Street, Lagos… The number written on the building put up by Dawodu and Agoro Families is No. 12A and not 12. I have never seen the documents showing that No.8, 10 belong to Dawodu and Agoro family. I know that No 12A, John Street. Lagos belongs to Dawodu and Agoro families…
I know nothing about Nos. 8 and 10 John Street, Lagos. Exhibit 7 says No. 12, John Street, Lagos belongs to Dabiri.

I have had a close study of the oral testimonies of the parties to this case. There is no doubting the fact that there are some contradictions intrinsically and extrinsically, in their viva voce. The task of the court in ascertaining the truth in such circumstances is all but easy. But the law is now well-settled that where there were produced documents in support of the substance of the case before the court; (as it is in the instant case, the plaintiffs/appellants being the only party that tendered documentary evidence) the veracity of the testimonies of the parties and their witness is always tested by reference to such relevant documents tendered as exhibits which represent evidence of some unassailable character; deeds of conveyance, mortgages, deeds of assignment, deeds of lease etc, subject to any intrinsically legal defect in them possess unassailable character see FASHANU V. ADEKOYA (1974) 1 All NLR (pt.1) 35.
Documentary evidence is the yardstick by which the truth or otherwise of oral testimony is determined.

Reflecting on Exhibits 1, 2, 3, 4, 6 and 7. I have no hesitation in coming to the conclusion that the plaintiffs/appellants are the owners and the persons entitled to hold, enjoy and deal with the property styled as Nos 8, 10 and 12, John Street, Lagos. This is so because the deaths of Sabitiyu Agoro. Moriamo Agoro (later called Moriamo Dawodu nee Agoro) and Sule Agoro vested that right in them. All the documents of title tendered and on which the finding of who the owners of the property are, were tendered by the plaintiffs/appellants. The appellants can correctly be said to have relied on the strength of their case and not on the weakness of the defence. Somewhere in the judgment of the court below a finding was made that No 12, John Street, Lagos was partitioned into two i.e. No 12, John Street, Lagos and No. 12A John Street, Lagos. The court below, in my view, went into a serious error by that finding. There was no scintilla of evidence required in law to sustain a finding of partition. See OLORUNFEMI V. ASHO (2000) 2 NWLR (Pt.643) 143 Issue 1 in the appellants’ brief is therefore resolved in the negative.

From the evidence before the court below, the parties are ad idem that Nos 8 and 10, John Street, Lagos belong to the plaintiffs. I have quoted, above a large portion of the defendant’s testimony. In the course of his inconsistent evidence, the only witness (Kayode Disu) called by the defendant/respondent said No 12 John Street as well belonged to the plaintiff’s family and so also No. 12A, John Street on which he said the plaintiffs’ family had a building. He said of the defendant/respondent thus:

“I know Alhaji Musibau Majolagbe. He was the one who built the foundation and the German Flour at No. 12, John Street, Lagos … saw Alhaji Musibau Majolagbe at No. 12, John Street, Lagos sometime last year 1994.”

A case of trespass would, from the above, have been adequately made against the defendant/respondent. As I have said, from the totality of the evidence before the court below, judgment ought to have been entered in favour of the appellants consequently, I answer issue 2 on the appellant’s brief in the negative- judgment should have been entered in favour of the plaintiffs/appellants. From what I have said supra of the evidence led the duties of law that rest upon the plaintiffs as set out in issue 1 on the respondent’s brief have been discharged by the plaintiffs/appellants. By his own admission, the defendant/respondent committed trespass on the plaintiffs/appellants property. It is my view therefore, that all the three issues raised in the defendant/respondent’s brief of argument must be resolved against him and they are hereby so resolved.

In leg 2 of the reliefs, the plaintiffs/appellants are claiming an order of perpetual injunction. In law, an order of perpetual injunction is never granted at the instance of a limited owner when the owner of the absolute interest is not a party to the suit. See CHIEF DADA, the LOJAOKE V. CHIEF SHITTU OGUNREMI & ANOR (1967) NMLR 181 in which the Supreme Court gave approval to this principle of law as given by the English Court in its decision in Performing Right Society Ltd v. London Theatre of Varieties Ltd (1924) A.C.I. In the instant case, the appellants are the absolute owners and they are entitled to an order of perpetual injunction as claimed.

Although I have made a blanket statement that based on the evidence before the court below, the plaintiffs/appellants ought to have been given judgment. I observe that in leg 3 of the reliefs sought they are praying for an order to demolish the structures put on the land by the respondent and that an order be made that the (respondent) should bear the cost of the demolition. No evidence was given of the nature of the structures standing on the land; and neither was any shred of evidence led as to the cost of the demolition of the structures. The latter part of that leg of relief relating to cost of demolition cannot therefore be entertained. Of course, since the plaintiffs/appellants are adjudged to be the owners of the property they are at liberty to do whatever they like with it within the frame work of the law. In Leg 4, they are claiming N1 million (one million naira) as special and general damages for the substantial financial loss allegedly suffered by them and for the acts of trespass. Again this leg is substantially devoid of evidential proof. I am not unmindful that trespass was established and that the appellants would be entitled to some monetary award; after all trespass connotes the slightest disturbance to property. I shall award them N10,000.00.

In sum, having regard to all, I have said above it is my judgment that this appeal has merit. Consequently, judgment of the court below is hereby set aside. In its place, I hereby enter judgment in favour of the plaintiffs/appellants as follows:

(1) The plaintiffs/appellants for themselves and other members of the families of Madam Moriamo Dawodu (nee Agoro) and Sule Agoro are hereby declared to be persons entitled to the issuance of Statutory Right of Occupancy of all that piece or parcel of land situate, lying and being at and known as Nos. 8, 10 and 12 John Street, Lagos.
(2) An order of perpetual injunction is hereby made restraining the defendant, his agents, servants and privies and/or any person(s) in that behalf from further trespassing and/or committing acts of trespass on the plaintiffs/appellant’s family.
(3) As the plaintiffs/appellants have been adjudged to be the absolute owners of the land they are at liberty to do whatever they like with same within the confines of the law.
(4) The sum of N10,000.00 (ten thousand naira) as general damages for the trespass committed by the defendant.

The appellants are entitled to the cost of this appeal which I assess in their favour at N5,000.00.

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Other Citations: (2000)LCN/0892(CA)