Alhaji J. Aromire & Ors Vs J.j. Awoyemi (1972)

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COKER, JSC

This appeal is from a judgment of the High Court, Lagos (George, J.), in a case which the plaintiff (now respondent), had claimed originally against one Alhaji Jubrilla Aromire on a summons endorsed as follows:-

“1. The plaintiff’s claims against the defendant are for the sum of £500 being special and general damages for trespass.

2. Recovery of possession of all that piece or parcel of land situate at Obele Oniwala Court, Awoyemi Compound in the Federal territory of Lagos;

3. An injunction restraining the defendant, his servants and or agents from committing further acts of trespass on the said land. Title is involved.”

Alhaji Jubrilla Aromire is now the 1st appellant before this court. Soon after the filing of the writ, the plaintiff took out a Motion asking for an interim injunction to restrain the defendant, Alhaji Aromire and privies, servants and agents from further trespassing on the land. The defendant then filed a counter-affidavit in which he stated, inter alia, that he was only an agent for one Alhaji Elias who claimed to have owned the said land which he had later sold to one O.J. Mazelli. An order of Interim Injunction was made and pursuant to orders of the High Court, O.J. Mazelli and Alhaji Elias were joined as the 2nd and the 3rd defendants respectively. Before us they are the 2nd and 3rd appellants respectively.

Later, and in the course of the proceedings in the High Court, the plaintiff took out another motion asking the court to order that his surveyor should be allowed to survey the land in dispute for the purpose of preparing a plan in compliance with the order of court for pleadings to be filed. That motion was supported by an affidavit of the plaintiff and paragraphs 8 and 9 of that affidavit, so far as they are pertinent, read as follows:-

“8. That my surveyor informed me and my solicitors that he had been twice on the land but was prevented by Mutairu Salu and Buraimoh Awoyemi from carrying out the survey. 9. That the said Salu and Buraimoh are agents on the land in dispute of the defendants…..”

Apparently, Buraimoh Awoyemi and Hadji Yaya Bakare Faji were put on notice as their names were mentioned in the plaintiff’s affidavit. Both of them thereafter filed counter-affidavits. In the counter-affidavit of Buramoh Awoyemi the following paragraphs, among others, occur:

– “2. That I am the present head of the Awoyemi family of which the plaintiff/appellant is a member and also the Bale of Obele Oniwala Court.

3. That Obele Oniwala Court where the plaintiff and I and over 50 other persons live is vested in 3 families – Imoru, Awoyemi and Faji, from time immemorial as co-owners.

5. That neither I nor the whole of Awoyemi family is a party to the suit which the plaintiff pursues in his personal capacity, without the knowledge and consent of the family.”

Similar renunciations are contained in the counter-affidavit filed by Hadji Yaya Bakare Faji who claimed to be a principal member of the Faji Otun Family. The plaintiff obtained the order for his surveyor to survey the land in dispute and the adjoining lands in the following terms:-

“IT IS HEREBY RULED that the plaintiff’s surveyor be and is hereby authorised to survey not only the land in dispute but also with it the contiguous lands which with the land in dispute originally belonged to the extended family AND THAT the plaintiff should serve on each of those three occupants put on notice with his Statement of Claim and plan so that they will be in a position to know the extent of the plaintiff’s claim.

IT IS ALSO ORDERED that the plaintiff’s surveyor is not to be interfered with in his operations by the defendants and those on notice, their servants and agents.” It should be observed that the persons put on notice of the Motion were not parties to the suit and they had not before then seen either the writ or the pleadings of the parties although they had sworn positively that they were not agents of the defendants or any of them.

The imprudence of the step taken of serving them with notice of the motion when they were not parties will be manifest later. However, pursuant to the events that happened, Joshua Faji, Buraimoh Awoyemi and Alhaji Mutairu Salu took out a motion asking that they be joined as defendants in the action. They were so joined and became the 4th, 5th and 6th defendants respectively. Before us they are as well defendants/respondents. Pleadings were filed and exchanged by the parties. By his Statement of Claim, the plaintiff avers that the land in dispute, edged yellow in his plan, was part of the larger piece of land edged blue allotted to the Awoyemi Family out of a yet bigger parcel of land shown edged red on the same plan, originally belonging to one Ojo Awoyemi by native Law and Custom, he being the first settler on the land.

The Statement of Claim further avers that by virtue of the plaintiff being a descendant of the aforesaid Ojo Awoyemi, he had been let into possession and had indeed erected a building on the yellow area and had always lived there with his family in the same way that his own progenitors before him had lived in the houses built by them on the land. The Statement of Claim further states that in or about the month of February, 1965, the 1st defendant broke and entered into the said land, demolished his out-houses and despite his repeated warnings, commenced building operations on the said land. Finally, the Statement of Claim avers that the 2nd and 3rd defendants also wrongfully entered upon the said land and have claimed ownership of same. The 1st, 2nd and 3rd defendants filed a Statement of Defence.

That Statement of Defence avers that the land in dispute was part of extensive areas of land originally belonging by Native Law and Custom to the Asalu Alago Family, that that family consisted of two main branches, i.e., the Olufajo branch and the Iyajomu branch, that these two branches also comprised of sub-branches and that in particular the Iyajomu branch comprised the sub-branches of the Osuro and the Oduntan – Abayomi kindreds. The Statement of Defence of the first three defendants further avers that pursuant to an order of court, all the lands of the Asalu Alago Family were partitioned among the branches and sub-branches of that family and that the land in dispute fell within the lot of the Osuro sub-branch, the members of which had in turn sold same to the 3rd defendant by virtue of a conveyance dated the 11th February, 1954.

The Statement of Defence of those defendants further avers that it was the 3rd defendant who had sold the land to the 2nd defendant and that the 2nd defendant had already completed the erection of a sizeable building on the land. The defendants/respondents had also filed a Statement of Defence. In that Statement of Defence they denied the principal averments in both the Statement of Claim of the plaintiff and the Statement of Defence of the first three defendants (hereinafter referred to as “Appellants”).

The Statement of Defence of the defendants/respondents further avers that – “The whole of the Obele Oniwala Court, or Obegirimo as it was formerly known a portion of which is the subject matter of this suit was originally granted through Ojo Awoyemi Alias Asorofowora to its three original inhabitants Mommokoro, Faj

Other Citation: (1972) LCN/1565(SC)