Ayorinde V. Kuforiji (2022)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The undisputed fact is that on 11th September, 1954, the three Kuforiji brothers, namely: Samuel Abraham Kuforiji, Herbert Frederick Afolabi Kuforiji and Hezekiah Christopher Olajide Kuforiji, jointly and as joint owners to the exclusion of their other brothers and cousins, executed a deed of lease (Exhibit B) wherein, upon valuable consideration, demised the disputed land to the Foreign Mission Board of Southern Baptist Convention (hereinafter called the Baptist Mission) for 99 years (i.e. up to the year 2053). The Respondent, as the defendant at the trial Court, specifically admitted this fact, in the Amended Statement of Defence and the counter-claim. In paragraph thereof the defendant averred:
- By a Lease made on 11th September, 1954 and registered as No. 9 at page 9 in volume 92 of the Lands Registry in the office at Ibadan now kept at Abeokuta the land in dispute was demised to the Baptist Mission for the term of 99 years at the reserved rent of £16.5s (Sixteen Pounds, Five Shillings) by Messrs Samuel Abraham Kuforiji (deceased), Herbert Federick Afolabi Kuforiji (deceased) and Hezekiah Christopher Olajide Kuforiji (deceased).
He further averred that the said Baptist Mission, pursuant to the lease, had “put Rev. (Dr.) James Tanimola Ayorinde (deceased) then the servant of the Baptist Mission into possession of the land in dispute.”
The defendant had earlier, in paragraph 19 of the Amended Statement of Defence and counter-claim, averred that he, as the counter-claimant-
– is the owner of the land in dispute together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession
of the disputed land. This is inspite of the joint ownership of the same land vesting jointly in the three Kuforiji brothers, including his father Hezekiah Christopher Olajide Kuforiji, pleaded later in paragraph 20 thereof. The defendant did not give further particulars as to how the joint ownership of the land in dispute which was jointly demised to the Baptist Mission in 1954 by the three joint owners, including his father, H.C.O. Kuforiji (deceased), eventually metamorphosed to the sole ownership of the H.C.O. Kuforiji (deceased) and devolving to him as “the owner – together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased).” It is on this basis the defendant counter-claimed for possession of the disputed land and “mesne profit at the rate N50,000.00 per year from 11th November, 1992 when the lease was determined until the plaintiff delivers possession thereof to the defendant”. The defendant did not bring his counter-claim in any representative capacity.
The survey plan of the disputed land is Exhibit A. The undisputed 1954 lease between the three Kuforiji brothers, as joint owners/lessors, and the Baptist Mission is Exhibit B.
The Appellant, as the plaintiff and a nephew of Rev. (Dr,) J. T. Ayorinde, had averred that “by Deed of Surrender dated the 29th day of May, 1974 and registered as No. 33 at page 33 in volume 503 of the Lands Registry in the office at Ibadan now kept in Abeokuta, the Foreign Mission Board of the Southern Baptist Convention surrendered their unexpired term to the late Pa Rev. (Dr.) J. T. Ayorinde in respect of the land in dispute -”. The said Deed of surrender is Exhibit C in the proceedings.
Exhibit D is the Deed of Conveyance dated 1st May, 1973 executed in favour of Rev. (Dr.) J. T. Ayorinde by Chief Jonathan Kuforiji and Chief Simeon Olujinmi Kuforiji for themselves and on behalf of Kuforiji Family Council of Kemta, Abeokuta. It was registered at Land Registry as No. 22 at page 22 in Volume 1446. The plaintiff alleged that by the said Deed of Conveyance the reversionary interest in the land in dispute was conveyed to his uncle, the late Rev. (Dr.) J. T. Ayorinde and that upon the latter taking “absolute possession” of the disputed land, he (the plaintiff) moved into the disputed land and stayed with the Rev. (Dr.) J. T. Ayorinde who was a brother of the same blood with his (the Plaintiff’s) father, Emmanuel Bolaji Ayorinde.
The defendant did join issues with the plaintiff’s assertion, pleaded in paragraph 10 of the Statement of Claim that his grandfather, Ayorinde, begat two children, that — his father Emmanuel Bolaji Ayorinde and Rev. (Dr.) J. T. Ayorinde. This fact of Emmauel Bolaji Ayorinde and Rev. (Dr.) J. T. Ayorinde being brothers of full blood is not in dispute. Also not disputed is the fact that the plaintiff, the son of Emmanuel Bolaji Ayorinde is a nephew of Rev, (Dr.) J. T. Ayorinde who died intestate and without issue on 5th March, 1977. The wife of Rev. (Dr.) J. T. Ayorinde died on 10th August, 1996, also intestate without an issue. She was buried on 14th September, 1996.
What appears to be the immediate cause of action is the fact averred in paragraph 20 of the Statement of Claim; that is, that on 15th September, 1996, just a day after the burial of Mrs. Ayorinde “the defendant came to the land in dispute with over 40 hefty men suspected to be thugs to damage the gates, the poultry farm” put in place on the land by the plaintiff several years previously. The plaintiff further avers that in 1987 he had built a block of shops on the disputed land and had put in tenants without any interference or disturbance from the defendant. On these facts, the plaintiff claimed against the defendant that he be declared the person entitled to the statutory right of occupancy over the disputed land. He also claimed N100,000.00 as general damages for trespass and N100,000.00 as special and general damages for the killing of poultry birds, malicious damage to his walls and crops on the land; and an order of perpetual injunction restraining the defendant from further acts of trespass.
The plaintiff did not obtain Letters of Administration. This appeal is against the findings of the trial Court, affirmed by the lower Court, to wit;
- the plaintiff did not have locus standi to maintain his suit based on his claim that he was entitled to inherit the intestate realm of the late Rev. (Dr.) J. T. Ayorinde, his uncle.
- the disputed land did not properly vest in late Rev, (Dr.) J. T. Ayorinde and that Exhibits C & D did not vest the land in dispute on the late Rev. (Dr.) J. T. Ayorinde,
- the late Rev. (Dr.) Ayorinde having gone through Christian marriage, in his lifetime, “his estate was not governed by customary law but the general law”; and
- having held that Exhibits C & D did not convey confer any title on Rev. (Dr.) J, T. Ayorinde the trial Court was not bound to apply Section 49(1) of the Administration of Estate law of Ogun State, and that this law is not applicable to this case.
The plaintiff’s suit, dismissed in its entirety by the trial Court, was affirmed partly by the lower Court. The lower Court only affirmed part of the award in favour of the defendant in respect of the counter-claim. That is; the judgment of the trial Court declaring the defendant “as the beneficial possessor of the land in dispute.” The trial Court’s award of N30.00 per square meter, as mesne profit, from November, 1992 in favour of the defendant was set aside. Only the plaintiff has further appealed. The defendant did not appeal the decision of the lower Court. The Appellant has 9 grounds of appeal challenging the decision.
The Respondent, vide a purported Notice of Preliminary Objection, submits that grounds 1, 4, 5 and 7 of the Further Amended Notice of Appeal are incompetent and should be struck out. The purported Notice of Preliminary Objection clearly concedes that other grounds of appeal, namely: 2, 3, 6, 8 & 9, sustain the appeal. In the circumstance the procedure of Notice of Preliminary Objection under Order 2 Rule 9(1) of the extant Rules of this Court is not appropriate. As Rhodes-Vivour, JSC stated in ISAH v. INEC & ORS. (2014) 1-2 SC (pt. iv) 101-
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective (and) — the hearing of the appeal comes to an end if found to be correct. Where a Preliminary Objection would not be the appropriate process to object or show the Court the defects -in the processes before it, a motion on notice filed complaining about a few grounds or defect would suffice. See DAKOLO & ORS. v. DAKOLO & ORS. (2011) 6-7 SC (pt. iii) 104; OBATOYINBO v. OSHATOBA (1996) 5 NWLR (pt. 450) 531.
See also NNPC & ANOR v. FAMFA OIL LTD (2012) ALL FWLR (pt. 635) 204; GENERAL ELECTRIC Co. v. H. AKANDE (2011) 4 NSCQR 611; SANI v. OKENE (2008) 5 SCNJ 246.
The Notice of Preliminary Objection, not filed in accordance with due process of this Court for raising Preliminary Objection, shall be, and is hereby, discountenanced.
The Appellant was the Plaintiff at the trial Court. He was, at all material times to this appeal, in physical occupation or possession of the disputed land. He had undertaken some developments on the land. He had built shops which he had given out to tenants. He has a poultry farm, among other things on the land. He lived with his uncle, Rev. (Dr.) J. T. Ayorinde and his wife until their respective deaths in 1977 and 1996. The defendant, the Respondent herein allegedly, by force of arms and brute force using armed thugs, “trespassed upon the land in dispute” on 15th September, 1996, just a day after the burial of the widow of Rev. (Dr.) J. T. Ayorinde, and in the process allegedly caused damages to the perimeter fence, gates, the poultry and some birds, as well as the vegetables and crops on the land. Notwithstanding these facts, that were not in dispute, the two Courts below found and held that the Plaintiff had no locus standi to maintain his suit at the trial Court.
Locus standi denotes the capacity the Plaintiff has to institute proceedings in a Court of Law to seek a determination of his civil rights against the defendant. It only means or it is on whether the Plaintiff has shown sufficient interest or legal right in the subject matter of the dispute: LADEJOBI & ORS v. OGUNTAYO & ORS (2004) 18 NWLR (pt. 904) 204. The locus standi the Plaintiff has to institute and maintain the suit does not depend on the success or merits of the case: OJUKWU v. OJUKWU & ANOR. (2008) 18 NWLR (pt. 1119) 439. All the plaintiff needs to show either in his writ of summons or the statement of claim to demonstrate his locus standi to prosecute the case is merely to establish that he has a justiceable dispute or a reasonable cause of action against the defendant. I agree with the Appellant’s Counsel, on authority of LABODE v. OTUBU (2001) 7 NWLR (pt. 712) 256 (SC) that what matters is whether the cause of action averred supports, prima facie, the reliefs sought.
The two Courts below seemed to have got the issue of the locus standi the Plaintiff/Appellant had to institute the suit wrong when they endorsed the view that “since the Plaintiff based his title to the land on his inheritance under the native law and custom, and having failed to plead and prove the said native law and custom, and also having failed to show that the land properly vested on Rev. J. T. Ayorinde, and he was himself a stranger to the land; he had no legal right or interest on the land “that would vest in him the necessary locus standi to sue as Plaintiff in this case”. On its part, the trial Court held, at page 115 of the Record, held that since the plaintiff found his root of title on his inheritance from Rev. (Dr.) J. T. Ayorinde under customary law but did not plead the particular customary law it means he had no locus standi to institute the action. Both Courts below did not peruse the statement of claim holistically. The plaintiff pleaded that it was Rev. (Dr.) J. T. Ayorinde, his uncle, that put him in possession of the disputed land and that in furtherance of his being on the land, he cultivated the land, built poultry farm thereon and did as well physical improvements or developments thereon which the defendant, in act of self help and violence, destroyed. These averments constitute reasonable cause of action in favour of the Plaintiff such as to vest in him the necessary locus standi on which to prosecute his suit against the defendant. The Plaintiff’s locus standi and his cause of action are, in most cases, interwoven. The two Courts below were in error to deny the Plaintiff locus standi on the facts he pleaded in the statement of claim.
The indubitable facts of this case show that until 15th September, 1996 the plaintiff had been in physical possession of the disputed land. He had been there at the instance of his uncle of full blood with his father, Rev. (Dr.) J. T. Ayorinde. At all material times he was carrying out developments and improvements on the land. When his uncle died in 1977 he remained on the land with the widow of his uncle, who died in August, 1996 and was buried on 14th September, 1996. On 15th September, 1996 the defendant led numerous thugs to the land. The defendant’s entry to the land came only by that act of violent self-help, which the rule of law abhors.
The defendant is said to be one of the children of H.C.O. Kuforiji, one of the three Kuforiji brothers who, as joint owners, executed in 1954 the deed of lease in favour of the Baptist Mission — Exhibit B. In Exhibit C the Baptist Mission executed a deed of surrender of the unexpired 99 years term of the lease in Exhibit B in favour of Rev. (Dr.) J. T. Ayorinde. I have read Exhibit B. I cannot find from Exhibit B any clause or provision therein that prevented or restrained the Lessee, the Baptist Mission, from sub-letting or creating any sub-lease. It is therefore my firm view, reading Exhibits B and C together, that the Baptist Mission had lawfully executed the deed of surrender, the Exhibit C, in favour of Rev. (Dr.) J. T. Ayorinde. The two Courts below were perverse in their finding and conclusion that Exhibit C conveyed nothing on Rev. (Dr.) J. T. Ayorinde through whom the Plaintiff claims.
At pages 114—115 of the Record the trial Court found that Exhibit D, which was said to convey or transfer absolute title to Rev. (Dr.) J. T. Ayorinde, was executed by Chief Simeon Olujinmi Kuforiji and Daniel Jonathan Kuforiji for themselves and on behalf of the Kuforiji family, was discredited by the DW.1 and DW.2 on the ground “that the land did not belong to the Animasun Kuforiji family Council but jointly to the three brothers: S. A. Kuforiji, H.F.A. Kuforiji and H.C. O. Kuforiji”. The Defendant, claiming to be that successor-in-title of the said three Kuforiji brothers tendered Exhibit F, minutes of the meeting of the Kuforiji Family Council of 16th and 17th September, 1979 to buttress his contention “that Exhibit D could not have conveyed the land to Dr. Ayorinde because the purported vendors had nothing to convey”. The trial Court found further that
“The land belonged to the three persons (i.e S.A. Kuforiji, H.F.A. Kuforiji and H,C.O, Kuforiji) who had joint tenancy”;
and so on the basis of nemo dat quod non habet, the Kuforiji Family Council and its officers, not having any title in the land, had no interest over the land to convey. The reasoning is quite plausible.
I observe from page 2 of Exhibit D that “Chief Daniel Jonathan Kuforiji and Chief Simeon Olujinmi Kuforiji for themselves and on behalf of members of the Kuforiji family of Kemta, Abeokuta Western State (hereinafter called the vendors)” executed Exhibit D “for themselves and on behalf of all members of KUFORIJI FAMILY COUNCIL“. From this fact the trial Court, on the basis of nemo dat quod non habet had made a point that the Kuforiji Family Council, not shown to be successors in title of the three joint owners of the disputed land, namely: S. A. Kuforiji, H. F. A. Kuforiji and H. C. O. Kuforiji, could not, in law, have passed good title to Rev. (Dr.) J. T. Ayorinde vide Exhibit D as claimed by the plaintiff. This however does not diminish my earlier posture that the sub-lease created in favour of Rev. (Dr) J. T. Ayorinde vide Exhibit C remains extant, subsisting and inviolate.
Both the plaintiff and defendant seem to trace the root of their respective titles to the original joint ownership of the disputed land vesting in the three brothers – S. A. Kuforiji, H. F. A. Kuforiji and H. C. O. Kuforiji. The three brothers jointly leased the land to the Baptist Mission in 1954 for 99 years — Exhibit B.
The Defendant, who also was the DW.4, presented two radically inconsistent roots of title at page 88 of the Record. He is one of the children of H. C. O. Kuforiji. In one breadth he testified –
Hezekiah Christopher Kuforiji – is my father. He is dead. He died in 1969. – The three (sic: trio) of H.F.A, Kuforiji, S. A. Kuforiji and H. C, O. Kuforiji did not share the land. The land was never partitioned.
The DW.1, at page 56 of the Record, confirms that the land belonged jointly to S. A. Kuforiji, H. F. A. Kuforiji and H. C. O. Kuforiji and that “the children of (these) three people succeeded them in title”. DW.1, a retired High Court Judge, while he confirms the joint ownership of the successors in title of the three brothers – S. A. Kuforiji, F. H. A. Kuforiji and H. C. O. Kuforiji, sharply contradicts the Defendant/DW.4’s volte face that “the land belongs to me and my brothers. We inherited it from our father” —H. C, O. Kuforiji. It is on this basis that the defendant, in the counter-claim, claims “possession of the land in dispute” from the plaintiff. Earlier in paragraphs 5 and 19 of the Statement of Defence and Counter-Claim the Defendant had averred that “he is the son of Hezekiah Christopher Olajide Kuforiji (deceased) – and successor in title of the original owners of the land in dispute”, and that “the counter-claimant (hereinafter referred to as “the Defendant”) is the owner of the land in dispute together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession thereof.
Neither in the pleadings nor the defence evidence was it ever explained how the defendant, the son of Hezekiah Christopher Olajide Kuforiji (became the) successor in title of the original (three) owners of the land in dispute”, or how the defendant became “the owner of the land in dispute together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession thereof”. His earlier evidence that the land in dispute was jointly owned by S. A. Kuforiji, H. F. A. Kuforiji and H. C. O. Kuforiji and the children of these three people jointly succeeded the three in title to the land dispute was a major and fundamental admission against interest. The evidence of the DW.1 corroborates this admission against interest. On this dubious palanquin the defendant carried his counter-claim with a stuttering and faltering lamentation proclaiming: Divided we stand, divided we fall.
The two Courts below did not consider these material contradictions in respect of the title to the beneficial possession they decreed in favour of defendant in furtherance of his counter-claim. When there are material contradictions in the case of a party the Court, cannot, without credible explanation by evidence, pick and choose which piece of evidence to believe and which piece of evidence not to believe: BOY MUKA v. THE STATE (1976) 10 SC 305. It is not for the Court to provide explanation for inconsistencies in a party’s case: ONUBOGU v. THE STATE (1974) 4 U. l. L. R 538. That burden falls squarely on the party who will fail without explanation in the circumstances.
The beneficial possession granted in favour of the defendant seems to imply, gratuitously, that he had been conferred with title over the disputed land. At 1368 of Earl Jowitt’s Dictionary of English Law 1905 Ed it is stated:
The adage, possession is nine parts of the law, means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonist’s; beati possidentes, blessed are those in possession –
Possession gives rise to peculiar rights and consequences. The principal is that a possessor has a presumptive title, that is to say, is presumed to be absolutely the owner until the contrary is shown, and is protected by law in his possession against all who cannot show better title to the possession than he has.
The defendant, having not proved the beneficial possession decreed in his favour; the two Courts below were in serious error to have decreed beneficial possession in his favour even inspite of material contradictions in that respect. The counter-claim being a distinct and independent suit, the counter-claimant must succeed on the strength of his case and not on the weakness of his adversary’s case.
The lower Court, in the face of the defendant’s failure to prove his entitlement to the beneficial possession of the disputed land decreed in his favour, ought to have dismissed the counter-claim. In the circumstance, therefore, the counter-claim shall be and is hereby dismissed in its entirety.
It is not in dispute that the plaintiff was a nephew of Rev. (Dr.) J. T. Ayorinde, the sub-lessee in Exhibit C. The said Rev. (Dr) J. T. Ayorinde, like his wife, died without an issue. The plaintiff was the son of the only brother of the said Rev. (Dr.) Ayorinde. The plaintiff lived with Rev and Mrs Ayorinde from 1973 until they both died intestate.
The Administration of Estates Cap 1 of the Laws of Ogun State, 1978 – a law relating to administration of estates of deceased persons, had been in force from 23rd April, 1959. At all the material times Rev, (Dr) J. T. Ayorinde and his wife died intestate without an issue.
The concurrent findings of the two Courts below are to the effect that the estate of Rev. Ayorinde, who died intestate, was not governed by Customary Law but by the general law as the said Rev. Ayorinde himself had gone through Christian marriage and that, in line with the decisions in COLE v. COLE (1898) NLR 15; COKER v. COKER (1943) 7 NLR 55 and OLOWU v. OLOWU (1985) 3 NWLR (pt. 13) 373, the plaintiff could not inherit the estate of Rev. Ayorinde under Customary Law. That had been the vehement position of the defendant/Respondent. It is also their further position that Section 49 of the Administration of Estate Law does not govern the situation in the instant case. The lower Court agreed with the trial Court, and of course the defence, that “the learned trial Judge was not bound to apply Section 49 (1) of the Administration of Estate Law of Ogun State to the facts” of this case and that the “law is not applicable to this case”.
Sub-Section (1) of the Section 49 of the said law providing that “the residuary estate of an intestate shall be distributed in the manner – mentioned in this Section” was not at all considered. Table (3) under Section 49 (1) of the Law provides inter alia:
If the intestate leaves one or more of the following, that is to say, a parent, a brother or sister of the whole blood, or issues of a brother or sister of the whole blood, but leaves no issue.
The plaintiff/Appellant’s pleading and evidence that he was the son of Emmanuel Bolaji Ayorinde, the only brother of Rev (Dr) J. T. Ayorinde who also had died was neither contested nor challenged. The parties were ad idem at the trial Court, that Rev (Dr) J. T. Ayorinde and his wife died intestate without an issue, and also that they celebrated Christian Marriage, by which their intestate was no longer governed by customary law but the general law, including the Administration of Estates Law Cap. 1 of Ogun State, 1978.
Table (3) under Section 49 (1) of the Administration of Estates Law is in pari materia with the President’s Direction (1925) (Non Contentious Probate) a Practice Direction made pursuant to Non-Contentious Probate Rule 6(2) of England – see pages 243-244: TRISTRAM & COOTE’S PROBATE PRACTICE 26th ED. (infra).
A nephew of the intestate who died without an issue, under the said provisions of the English statute, is entitled to the grant of administration where his father (deceased) was a brother of the intestate. At page 233 of TRISTRAM & COOTE’S PROBATE, 26TH Ed (supra) the learned authors persuavily re-stated the rules or principle thus,
If the intestate leaves no husband or widow, issue or parent, a grant (of administration) will be made to the lawful brothers and sisters of the whole blood, or to the issue of the deceased lawful brothers and sisters of the whole blood, taking per stripes.
As regards their rights to a grant, the issue of predeceasing brothers and sisters, taking per stripes, have equal claim with surviving brothers and sisters, but it is necessary to show in the Oath how their beneficial interest arises.
Per stirpes (Latin “by roots or stocks) means, according to Black’s Law Dictionary 9th Ed., page 1260, proportionately divided between the beneficiaries according to the deceased ancestor’s share. The defendant/counter-claimant clearly does not belong to the same genre as the plaintiff. He is not claiming through Rev (Dr.) J. T. Ayorinde nor as an heir of the intestate of their Ayorinde.
Between the Plaintiff and the Defendant, the former has not only the better title, but has proved his better title, to the unexpired portion of the lease of 99 years vide Exhibits B and C, the unexpired term in Exhibit B having been sublet or surrendered to Rev (Dr) J. T. Ayorinde by the Deed of Surrender, Exhibit C, executed in his favour by the Baptist Mission. The sum total of all I have been labouring to say on this issue is that: if the two Courts below had patiently and painstakingly considered and/or construed Table (3) of Section 49 (1) of the extant Administration of Estates Law of Ogun State, they would not have held that the said provision was inapplicable to the present dispute. Section 49(1) of the Law, particularly Table (3) made thereto is germane and applicable to the suit, as general law in view of the facts of this case. On this issue, I allow the appeal.
The criminal ingenuity of the Defendant/counter-claimant is amazing. He has no relief for forfeiture against the plaintiff even as he pleaded and called evidence, albeit falsely, in proof of he and his brothers, the children of H, C. O. Kuforiji, being the successors-in-title of the joint ownership of the land vesting in S. A. Kuforiji, H. F. A. Kuforiji and H. C. O. Kuforiji. At the same time he led evidence establishing the joint ownership remaining extant, there being no partition of the said joint ownership. The whole essence of his pleading that Rev (Dr) J. T. Ayorinde and his wife celebrating Christian Marriage and dying intestate without an issue, and that “there is no record – that anybody obtained probate of the estate Dr. James Toriola Ayorinde in respect of the land in dispute” is for him to surreptitiously and fraudulently recover the reversionary interest in the disputed land to himself and the children of H. C. O Kuforiji, there being, albeit falsely, no person or issue of Rev. (Dr) Ayorinde entitled to inherit or the grant of administration in respect the disputed land. Between the plaintiff and the defendant, the plaintiff is more entitled to inherit or grant of administration in respect of the extant and subsisting lease of disputed land particularly in view of Exhibits B and C. Even if in default of any person taking absolute interest under Section 49 of the Administration of Estates Law, the residuary estate of the intestate shall belong to the State as bona vacantia (Section 49(i)(f) of the Law) contrary to the defendant’s wishful thinking.
In view of all I have been saying, I hereby declare that the acts of violent self-help and thuggery deployed, in September, 1996 by the Defendant in the invasion of the disputed property legitimately in possession and occupation of plaintiff amounted to unlawful trespass to the land described in Exhibit A. The defendant, apparently pleading justification and his right to enter the disputed land, did not contest the allegation that in consequence of his actions, the plaintiff suffered loss of N100,000.00 for the properties damaged as well as N100,000.00 claimed as general damages for trespass. Those facts, not in dispute, the sum of N100,000.00 is hereby awarded to the plaintiff against the defendant for the properties damaged. The sum of N100,000.00 is further awarded against the defendant, and in favour of the plaintiff, as general damages for trespass. For as long as Exhibit B and C subsist the defendant, his agents, assigns and privies are hereby restrained from continuing any further acts of trespass on all that piece of land covered by and described in Exhibit A.
The plaintiff is entitled to costs thrown away in prosecuting this case. The sum of N2,000,000.00 is hereby awarded in favour of the Plaintiff/Appellant and against the Defendant/Respondent.
SC.27/2008
