Chief T. A. Dosunmu & Ors V. Jeminatu Ajoke Ajagun & Ors (1978)
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S. SOWEMIMO, J.S.C.
The plaintiffs now respondents before us sued defendants/appellants in the Lagos State High Court for the following claims:-
1. To have the judgment dated the 11th day of November, 1969 delivered by the Honourable Mr. Justice O.R.I. George in Suit No. LD/613/62 between Olaseinde Taiwo, Folashade Taiwo and Victoria Remilekun Taiwo (the first three defendants herein) as plaintiffs and Semisemiyu Dosunmu and Chief T. A. Dosunmu (the last two defendants herein) as defendants relating to the property situate at No.17/19, Oshodi Street, Lagos be set aside, or in the alternative.
2. A declaration that the said property No. 17/19 belong to the plaintiffs under native law and custom. The value of the said land is 50 Pounds.
On completion of hearing, Odesanya, J., dismissed the first item of Claim and gave judgment in favour of the plaintiffs in the alternative claim.
At the hearing of the case in the High Court of Lagos State, the parties tendered a judgment of George, J., in Suit LD/613/62 as Exhibit A and there it was held that the properties 17/19, Oshodi Street belonged to Dosunmu Ajiwe family.
No appeal was lodged against that judgment. Another judgment was tendered as Exhibit B which is Suit 414/1955 by Sir Olumuyiwa Jibowu, J., (as he then was) in which he directed the Dosunmu family to enfranchise the property Nos. 17/19, Oshodi Street, Lagos under the Epetedo Lands Act Cap. 61 of Volume II of the Laws of the Federation of Nigeria and Lagos 1958. That judgment of the then Supreme Court was not appealed against and its effect is that the ownership by the Dosunmu Ajiwe family remains valid.
On appeal before us, it was contended that since the two judgments, Exhibits A & B subsist, it was not open to the court to give any other judgment which has the effect of setting aside the judgments in these cases, Exhibits A & B. Faced with this contention, learned counsel for the respondents conceded that he could not support the judgment of Odesanya, J., on appeal before us.
We wish to observe however that although the grounds on which the plaintiffs intended to set aside the judgment in Exhibit A did not seem to be on the basis of any of the known recognised principles of law, for which this could be done, the claim was in any event dismissed. That judgment therefore subsists. If that is so, we do not see how the trial Judge could give any judgment in conflict with Exhibit A.
With regards to Exhibit B, no issue was joined as to whether a Deed of Enfranchisement was or was not executed and since it was no issue before the learned trial Judge, we find it difficult to appreciate his reasoning that because the Deed of Enfranchisement was not stated to have been executed or produced before him, the judgment of Jibowu, J., has no effect. It appears to us that the learned trial Judge had not dealt with this case on the basis of the evidence especially admissions made before him by the plaintiffs, that they knew when the proceedings in Exhibits A & B took place, but did nothing to join in them as their alleged interest was involved. This definitely negatives their claim to ownership from time immemorial from their ancestor.
This appeal therefore succeeds. The judgment of the learned trial Judge (Odesanya, J.) in Suit LD/238/70 delivered on 14th February, 1975, including the award of costs is hereby set aside. In substitution thereof, we enter judgment for the defendants/appellants and dismiss the Claim for declaration that the property No. 17/19, Oshodi Street, Lagos, belong to the plaintiffs under native law and custom. We award costs of N173.00 in favour of the appellants in this court and N25.00 in the lower court.
Other Citation: (1978) LCN/2125(SC)
