Chief O.A. Fabumiyi And Another V F.a. Obaji And Another (Substituted For Madam Ibilola) (1967)

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COKER, J.S.C. 

This appeal is brought by the plaintiffs against the judgment of Fatayi Williams, J.(as he then was) sitting in the High Court, Akure, Western Nigeria. Before him the plaintiffs had claimed as follows:-

(i)  Declaration of title to farmland situate in Otoro Oshogbon in Owo District.

(ii) £100 damages for trespass committed by the defendant to the said farm-land.

(iii) Injunction restraining the defendant, her servants and agents from further trespassing into the said farmland.

The present respondents were not the original defendants to the action: they were substituted by order of this Court on the 7th August, 1967, for one Madam Ibijola who was the original defendant and was reported dead after the appeal had been argued but before our judgment was delivered. Any reference to this judgment to the “defendant implies a reference to the aforesaid Madam Ibijola.

[Coker, J.S.C. then dealt with the other claims and continued]: ………..  the claim for an injunction alone remains to be considered. The application to substitute the present respondents for the defendant was brought by the appellants and although learned counsel for the respondents did not oppose the application for their substitution, she submitted that If the judgment went against the defendant, an in-junction could not be issued against the respondents. Mr. Ogunneye, holding Mr. Adeyefa’s brief for the plaintiffs, contended that the respondents could be made liable to this claim and referred us to section 15 (1) of the Administration of Estates Law, cap. 1 (Western Nigeria). He submitted that the remedy could be granted after the death of Madam Ibijola against her estate.

The argument falls within a narrow compass and the issue to be resolved seems small. The rules governing the transmission of interests on the death of parties in civil proceedings are familiar and it is only necessary to deal shortly with the point in this judgment. Section 15 (1) of the Administration of Estates Law provides as follows:-

“15(1) Subject to the provisions of this section, on the death of any person after the commencement of this Law all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”

The section clearly requires that the remedy sought must be one which could properly be granted to or against the representatives whether for the benefit of the estate or as a liability against it. In the case in hand, the plaintiffs’ claim for an injunction was based on averments in their Statement of Claim that the defendant did certain acts and Intended a repetition of those acts. That was the basis of their claim and the remedy of injunction which they sought is essentially a remedy in personam. Thus, apart from the fact that no material exists in the pleadings and the evidence before us to justify the grant of an injunction against the present respondents, it cannot be argued with propriety that liability to an injunction against the deceased defendant ensures against her representatives for the simple reason of that representation. It is not difficult to see that section 15(1) of the Administration of Estates Law does not enable an Injunction to be granted.

The defendant maintained in the High Court and before us that she was an-tided to range as she did over the area edged green in her plan (exhibit B). This area was not granted to her ancestors, nor to her and was not conceded to her by the plaintiffs. The observations already made by us in this judgment no doubt indicate that we would have given judgment against the defendant (were she alive) on the claims for trespass and injunction. In the circumstances that now exist, how-ever, and on the strength of our remarks on this claim, we propose to make no order on the claim for injunction. No order is therefore made on this claim.

The judgment of the High Court, Akure, in Suit No. AK/8/61 is hereby reversed and set aside. The following orders are made by this Court:-

(i). The appellants are granted a declaration of title in respect of the area edged pink in their plan (No. B.K 4439- exhibit A), declaring that they are the owners thereof.

(ii) The respondents are entitled to occupy and use the portion of land edged yellow on exhibit A subject to good behaviour and in accordance with native law and custom. It is hereby adjudged that only that portion was allotted to the ancestor of the defendant, Saja Awolo, by the ancestors of the appellants for use in accordance with native law and custom.

(iii). The defendant’s counter-claim is dismissed.

(iv)The respondents must pay to the appellants the cost of these proceedings fixed in the court below at 60 guineas and in this Court at 100 guineas.

Other Citation: (1967) LCN/1368(SC)