Ramonu Rufai Apena & Anor V. Oba Fatai Aileru & Anor (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal number CA/L/404/98 delivered on 30th November, 2000 wherein the lower court set aside the judgment of the trial High Court and entered judgment for the present respondents. Dissatisfied with the decision of the Court of Appeal setting aside the judgment they won, the appellants have appealed to this court. A synopsis of the facts will suffice.

The respondents were the plaintiffs in suit No. LD/1727/88 at the Lagos State High Court and claimed against the 1st appellant (as 1st defendant) following reliefs:

“(1) The sum of N200.00 (Two Hundred Naira) being special and general damages for trespass committed by the defendant by himself, his servants, workmen, assigns, privies and agents or otherwise howsoever on all that piece or parcel of land situate, lying and being at Amu Street, Mushin shown in plan Nos. Alof/1095/LA/156 and Alof/1095/LA/157.

(2) An order of perpetual injunction restraining the Defendant by himself, his agents or otherwise on all that piece or parcel of land, lying and being at Amu Street, Mushin in plan numbers Alof/1095/LA/156 and Alof/1095/LA/157.

(3) An order directing the defendant to render full account of all rent or mesne profit collected from tenants on the land in dispute to the plaintiff and pay over the said rent or mesne profit to the plaintiffs.

The respondents also filed a similar claim against the 2nd appellant who is the brother of the 1st appellant. The 2nd suit number was LD/1728/88. At the trial, both parties and the court agreed that the judgment In LD/1727/88 should bind the parties in suit No. LD/1728/88.

The land in dispute, according to the respondents was first inhabited by Odu-Abore and Aileru who jointly owned the land and that the said land devolved on the respondents. The two families became known as Ojuwoye community. According to them, their progenitors gave customary licence to one Osu-Apena, the grand father of the appellants for farming. It is their contention that Ojuwoye community determined the licence long ago during the life time of Osu-Apena.

In paragraph I of the appellants’ statement of defence, they admit that they are not members of Ojuwoye community. And in paragraph 3, admit that “the whole of the land at Ojuwoye Mushin, Lagos State is the communal land of Ojuwoye community which ownership is vested in the said community and the plaintiffs have no locus standi to institute this suit against the defendants.” They also admit in paragraph 14 of their said statement of defence that it was Ojuwoye community which allotted the land in dispute to Osu-Apena, their progenitor.

At the High Court, the learned trial judge entered judgment for the defendants, now appellants. The plaintiffs, (now respondents), not being satisfied with the judgment, appealed to the Court of Appeal which set aside the decision of the trial court and entered judgment for the plaintiffs/respondents. The appellants are dissatisfied with the judgment of the lower Court and have appealed to this Court. They filed notice of appeal dated 4th January, 2001 containing six grounds of appeal out of which the appellants have distilled four issues for the determination of this appeal. The four issues are:-

“1. Whether it can be adjudged as the Court of Appeal so decided, that Aileru and Odu Abore families, and both families alone, constitute the Ojuwoye community, to the exclusion of all other families in Ojuwoye, in view of the Supreme Court judgments in the consolidated suit Nos. 113 and 114/1950 Sunmola Aganran & 7 Ors V. J.F. Kanson (Exhibit D5) (b), suit No. 127 of 1944 – Yesufu Ajose, Sanusi Olowu, Gbadamosi Aileru, Amodu Iyalode, Salami Akinsanya (For themselves and as representatives of the Ojuwoye community V. Sunmola Aganran & Ors.

2. Whether from the totality of the evidence canvassed by the appellants herein at the trial of this suit, the Court of Appeal was right in assuming and concluding that the appellants derived their title from another “Ojuwoye community” which was not the same with the respondents’ Ojuwoye community who were the descendants of Aileru and Odu Abore families when both the appellants and respondents relied on the plan tendered as exhibit “A” in suit No. 127 of 1944, confirmed and reinforced in consolidated suit Nos. 113 and 114/50. Did this assumption result in a miscarriage of justice
3. Whether the appellants from the oral and documentary evidence adduced at the trial are members of the Ojuwoye community to justify their occupation and possession of the land in dispute.
4. Whether the respondents who were plaintiffs in this suit, discharged the burden of proof placed on them in establishing that the appellants (defendants) were “TRESPASSERS” and not “ALLOTTEES” to justify the claim in trespass, and injunction granted to them by the appellate court, in reversing the judgment of the High Court.”

It is however the view of the respondents that two issues are relevant for the determination of this appeal. The two issues as formulated by their counsel are as follows:-

“1. Whether the Court of Appeal was right when they held that the plaintiffs/respondents were entitled to succeed on their claim for damages for trespass and injunction.

2. Whether the Court of Appeal was right when they held that the defendants/appellants failed to lead any evidence as to the composition of his own Ojuwoye community and the source of title of the said Ojuwoye community in dispute.”

I intend to be guided by the issues formulated by the appellants.