Abolade Olatunji Coker V Lamidi Adeyemo & Anor (1968)

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MADARIKAN,J.S.C. 

The plaintiffs’ writ in the High Court, Ibadan, was as follows:-

“The plaintiffs’ claim against the defendant is for:-

(1) The sum of £3,000 being special and general damages suffered by the plain-tiffs as a result of the trespass committed by the defendant against the goods and properties of the plaintiffs who at all material times were and are in pos-session of a piece of land at No. 51 Onireke Street, Ibadan. The amount of special and general damages severally suffered by the plaintiffs are as here-under stated:

Special and General Damages

first plaintiff    LAMIDI ADEYEMO    £800-.£200

second plaintiff,    MADAM ESTHER TITI    £800-.£200

third plaintiff    AKADIRI KILANI    £800-.£200

(2) An Order of Injunction restraining the defendant, his agent, servants and all persons claiming through him from entering or doing any acts whatsoever adverse to plantiffs’ possession upon the land.”

The action was instituted by three plaintiffs, viz., Lamidi Adeyemo. Esther Titi and Akardiri Kilani.

On the 16th of May, 1963, the third plaintiff filed an affidavit in the High Court in which he stated that he did not instruct anyone to sue the defendant. In it, he also stated that the land in dispute belonged to the defendant, that he was the chief ten ant of the defendant that the first and second plaintiff were his sub-tenants. On the application of learned counsel for the plaintiffs, the claim of the third plaintiff against the defendant was dismissed on the 20th day of May, 1963.

After both parties had exchanged pleadings in the lower court and before oral evidence was taken, learned counsel for the plaintiffs sought and obtained leave to substitute Juliana Ezekiel for the second plaintiff. It is pertinent to note that after obtaining the order for substitution no amended statement of claim was filed, and the case proceeded to trial without any pleadings by or on behalf of Juliana Ezekiel.

At the trial, eight witnesses testified for the plaintiffs. When the plaintiffs closed their case, neither the defendant nor his counsel was present in court and after plaintiffs’ counsel and addressed the court, the case was adjourned for judgment. Judgment was subsequently entered in favour of the plaintiffs as follows:

first plaintiff – £399 special damages for trespass and £50 general damages for trespass

second plaintiff – £315. 10/- special damages for trespass £50 general damages for trespass.

The plaintiffs were also granted an injunction as per the writ of summons.

From this decision, the defendant has appealed to the Supreme Court on 11 grounds. At the hearing of the appeal, Chief Williams, learned counsel for the defendant, abandoned grounds 9 to 11.

In arguing the first ground of appeal, Chief Williams contended that the learned trial Judge erred in law in that before making the order for substitution, he did not satisfy himself that Juliana Ezekiel was a party who ought to have been joined or whose presence before the court was necessary in order to enable the court effectively and completely to adjudicate upon and settle all issues involved in the case. He invited our attention to 0.7, r.10(2) of the High Court (Civil Procedure) Rules which was culled from 0.15, r.6 (2)(b) of the Supreme Court Rules in England, but unlike the English Rule, it does not require a person seeking to be joined as plaintiff to signify his consent in writing. In Long v. Crossley (1879) 13 Ch.D 388 it was held that the question whether a new plaintiff has a cause of action or not will not be considered on the application to add him, and at page 391 Fry J. made the following observations when considering the provisions of a rule similar to 0.15, r.6(2)(b) of the English Rules:-

“The object of the provisions of the rules was, not that a party’s case should be so framed as to succeed but that it should be? so framed that it can be adjudicated upon by the court, whether in his favour or against him.”

In the instant case, there is neither an averment in the statement of claim that Juliana Ezekiel suffered any damage nor is there any claim by her against the defendant. As stated earlier, she was not a party to the case originally. After being substituted for Esther Titi, no amended statement of claim was filed to disclose the case she was seeking to establish against the defendant.

We are satisfied that Chief Williams’ submission that at the time when Juliana Ezekiel was substituted for Esther Titi, there was no material before the court to justify the order for substitution is well founded.

Indeed at the hearing of the appeal, Mr. Ajibade, learned counsel for the plain-tiffs declined to deal with Juliana Ezekiel’s case but limited his arguments to the first plaintiff’s claim.

Chief Williams argued grounds 4(a), (b), 5 and 6 together.    In regard to these grounds it would appear that the evidence adduced at the trial discloses that the first plaintiff entered into a tenancy agreement (exhibit B), with the defendant on the 23rd day of November, 1960, whereby the land in dispute was let by the defendant to the first plaintiff, Akadiri Kilani and Esther Titi. Akadid Kilani is described as the chief tenant in exhibit B and the first plaintiff and Esther Titi are described as sub- tenants.

According to exhiit B £1 rent is payable monthly. Both the first plaintiff and Esther Titi testified that they were fraudulently induced by the defendant to sign exhibit B. It is not necessary to deal with this aspect of the case as the learned trial judge made no finding of fact on the allegation of fraud.

The first plaintiff admitted paying monthly rents to the defendant until he was informed by one Gbadebo Coker that the defendant was not the owner of the land. The second plaintiff also testified that Gbadebo Coker asked her to stop paying rent to the defendant and to quote from her evidence ‘therefore, we stopped paying rent to the defendant.” The only conclusion that can be drawn from this is that she was for some time the defendant’s tenant.

In view of this relationship of landlord and tenant which existed between the first and second plaintiffs on the one hand and the defendant on the other hand, the first and second plaintiffs cannot now dispute the defendant’s title to the land in dispute. In Cooke v. Loxley 101 E.R. 2 at page 3, Grose J. reitreated the general rule that a tenant cannot dispute his land-lord’s title and Further stated that “no rule is better founded in justice and policy than this.”

In our view, at the time of the alleged trespass, the defendant had a right to resume possession of the land in dispute, and consequently, the plaintiffs can-not maintain an action for trespass and injunction against him. In the result, we are of the opinion that the judgment under appeal cannot be supported.

The result is that this appeal will be allowed; the judgment of the High Court of the Ibadan Judicial Division in Suit No. 1/109/63 is hereby set aside, and judgment is entered dismissing the plaintiffs’ claim with 150 guineas. If the defendant has made any payments by virtue of the judgment of the High Court, they should be refunded to him.

Other Citation: (1968) LCN/1617(SC)