Alhaji Lamidi Daodu Olowosago Vs Alhaji Amuda I. Adebanjo (1988)

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KARIBI-WHYTE, J.S.C. 

On the 4th July, 1988, I summarily allowed the appeal of the appellants and indicated that the reasons for so doing will be given today. I proceed hereunder to give the reasons.

This is an appeal against the judgment of the Court of Appeal Division, sitting in Lagos. On the 2nd October, 1985, in a unanimous judgment read by Kolawole J.C.A., with which Ademola J.C.A., and Nnaemeka-Agu J.C.A. (as he then was, but now JSC) concurred, the court set aside the judgment of Desalu, J. of the High Court of Lagos State, sitting at Ikeja and dismissing the claim of the Plaintiffs/Appellants for

“1. A declaration that the Plaintiffs are entitled to the Statutory right of occupancy OR in the alternative a customary right of occupancy in respect of all piece OR parcel of land situate along Lagos Ikorodu Road, Ikorodu Lagos State which land is now particularly shown and delineated by becon No. WN 2722 and WN 2723 respectively same marked RED in plan N. L & L.CB 21 registered with the Deed of grant dated 28th day of December, 1959 and registered as No. 17 page 17 in Volume 358 of the land Registry, Ibadan.

2. Possession of the said land.

Perpetual injunction restraining the Defendant his Agent OR Servants and privies from repeating OR continuing the acts of trespass to the said piece OR parcel of land.”

The trial Judge dismissed the claim on the ground that only the grantees of the land in dispute as evidenced by the Deed of Grant, Exhibit A, are competent to bring an action against the defendants. Accordingly he held that the Plaintiffs had no connection with the land in dispute and therefore were not competent to bring the action against the defendant’. Plaintiffs appealed to the Court of Appeal against the decision.

Two grounds of appeal were relied upon in the Court of Appeal. Summarily stated, appellants, who are now the Respondents in this court complained that

(a) the learned trial Judge misdirected himself in law to have held that the Deed of Grant Exh. A relied upon by the plaintiff did not confer any interest in them.

(b) the learned trial Judge erred in law that only the first plaintiff averred that he is the son of a grantee and that the others did not establish their relationship to the Grantees mentioned in the deed of Grant. The learned trial Judge failed to observe the rules of natural justice.

After careful consideration of the arguments of the parties, the Court of Appeal observed at p. 189.

“The real bone of contention as disclosed from the argument in support of the appellant’s brief by Mr. Y.O.A. Akande is whether or not one member of a family may bring an action to protect the family’s interest over a piece of land.”

The Court also went on to observe that

“…. the issues have been narrowed down with regard to the person upon whom the onus of proof lies,”

In respect of the onus of proof, since the parties are ad idem that the Aige family is the original owner of the land in dispute, the onus is on the defendant not being a member of the Aige family to show that his possession is such as to oust that of the original owner. With respect to the competence of Plaintiffs to bring the action the Court of Appeal took the view that since it was common ground that the Aige family was the original owner of the land in dispute, and the root of title of Plaintiffs is in the Aige family, they rejected the conclusion of the trial Judge that Plaintiffs were not competent to bring the action against the defendant. The Court of Appeal held that Plaintiffs (or at least one of them 2nd Plaintiff) being members of the family of the late Chief T. K. Dada, have locus standi to prosecute this action.