Alhaja Rafatu Ayorinde & Ors V. Alhaja Airat Oni & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellants as plaintiffs at the Lagos High court instituted this action in a representative capacity (as representing themselves and other descendants of late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande) against the defendants. They claimed as follows:

“(i) A declaration that the Plaintiffs are the owners of the property situate, lying and known as No.67, Docemo Street, Lagos being an Estate of inheritance from their ancestor, Late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande.

(ii)A declaration that the Plaintiffs are the persons entitled to Certificate of Occupancy in respect of the said land.

(iii) Possession of the property.

(iv)Order of perpetual injunction restraining the defendants whether by themselves their servants and/or Agents from further act of trespass on the land.”

On 3/1/90 the learned trial Judge, Adeyinka, J. entered judgment in favour of the plaintiffs. On defendants’ appeal, the Court of Appeal unanimously reversed the judgment of the trial court and found for the defendants. Dissatisfied with the lower court’s judgment, the appellants have now appealed to this Court by Notice of Appeal dated 22/6/94. From the judgment of the lower court, appellants’ learned counsel, L. B. Lawal-Akapo, Esq. identified five issues for determination, namely:

“(1) Whether or not an action will fail because of NON JOINDER of a Party.

(2)What is the legal effect of a person who had knowledge (whether actual or constructive) or the pendency of a suit the result of which may likely affect his interest and did not apply to be joined as a Party.

(3)Whether judgment can be entered against a person sued in one capacity in a different (sic) capacity other than the capacity in which he was originally sued.

(4)Whether or not the judgment of a Court could stand where the Court did not consider the case or argument put (sic) forward by one Party and make a definite finding one way or the other.

(5)Whether or not a Court can discredit and reject the submission of a party on a major point of appeal and proceed to enter judgment in favour of the same party on the ground that the appeal was not focused or premised on the discredited and rejected submission.”

Respondents’ learned counsel, Messrs Onafowokan & Onafowokan postulated two issues for determination. viz,

(a)whether having regard to the nature and the manner in which the relief sought by the Plaintiffs in the trial court and the findings of the trial court that the Defendants are not the children and grand children of Yisa Giwa neither are they the descendants of Yisa Giwa, the Appellate Court was right in holding that the action was not properly constituted.