Tunde Osunrinde & Ors Vs. Mutairu Togun Ajamogun & Ors (1992)

LawGlobal-Hub Lead Judgment Report

M. E. OGUNDARE, J.S.C. 

In the High Court of Lagos State and by paragraph 25 of their amended Statement of Claim the plaintiffs who are now respondents in this court claimed from the defendants as follows:-

“(1) An order declaring as null and void the power of attorney dated the 16th day of August 1977 and registered as No. 92 at page 92 in Volume 1623 of the Lands Registry or in the alternative an order setting aside the said power of attorney.

(2) An order setting aside the lease dated this 19th day of July 1979 and registered as No.7 at page 7 in Volume 1784 of the Register of Deeds kept at the Lagos State Land Registry Lagos Nigeria.

(3) The sum of N50,000,000 being damages for trespass committed by 1st defendant his servants, agents and privies on all that piece or parcel of land situate, lying and being at Mafoluku and more particularly delineated with its dimension and abuttals on Plan No. OGEK 38A/78 attached to the Deed of Lease dated 19th day of July 1979 and registered as No.7 at page 7 in Volume 1784 of the Lands Registry in the office at Lagos.

(4) Perpetual injunction restraining the 1st defendant, his servants, agents and privies from further trespass on the said land.”

The 1st defendant filed a Statement of Defence. The 2nd defendant also filed a Statement of Defence. The 4th, 5th, 6th and 8th defendants (the 3rd and 7th defendants were then dead) filed and relied on a joint amended Statement of Defence. Pleadings having been completed the case proceeded to trial at the end of which, after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found for the defendants and dismissed plaintiffs’ claims. The plaintiffs being dissatisfied with this judgment appealed to the Court of Appeal which latter Court allowed the appeal, set aside the judgment of the trial court and entered judgment for the plaintiffs in the following terms:-

“The lease agreement dated the 19th day of July. 1979and registered as No.7 at page 7 in Vol.1784 of the Register of Deeds kept at the Lagos State Land Registry in Lagos is hereby set aside.

The 1st defendant is hereby ordered to pay the 2nd. 3rd and 4th plaintiffs the sum of N45,000.00 being damages for trespass committed by him and his servants, agents and privies on the parcel of land delineated in Plan No. OGEK 384/78 attached to the Deed of Lease dated 19th day of July, 1978 and registered as No.7 at page 7 in Vol. 1784 of the Lands Register in the office at Lagos. The 1st defendant, his servants, agents and privies are hereby restrained from further trespass on the said parcel of land.”

Being dissatisfied with that judgment the 1st defendant, with leave of the Court of Appeal, appealed to this court upon 9 grounds of appeal. Equally so, the 3rd to the 8th defendants, with leave of the said Court, too appealed to this court upon 3 grounds of appeal.

In respect of his own appeal, the 1st defendant filed and exchanged his brief of argument. The plaintiffs also filed the respondents’ brief in answer to appellants’ brief but as that brief was filed out of time. Miss Kuye of counsel for the respondents moved this court on 13/4/92 for extension of time within which to file respondents’ brief and to deem same already filed and served as being properly filed and served. The application was however, refused by this court on the grounds (a) that no penalty was paid by the respondents as required by the Rules of this court at the time of the filing of the brief and (b) that the brief itself was defective in that it contained no issues for determination. Mr. Ladimeji of counsel for the 3rd to the 8th defendants also moved the court on the same day for extension of time to file additional grounds of appeal and the brief of argument of the 3rd to the 8th defendants/appellants and to deem same already filed and served as being properly filed and served. This application too was refused on the grounds (a) that the proposed grounds of appeal were not annexed to the motion papers and (b) that the brief had not been filed nor any penalty paid in respect thereof. There being no brief filed in respect of the appeal of the 3rd to the 8th defendants, the appeal is hereby struck out pursuant to Order 6 rule 3(2) of the Supreme Court Rules.

The Court took oral arguments in respect of the Ist defendant’s appeal. The facts simply are these: The land in dispute belongs to the Ajamogun/Olukotun family. A power of attorney was granted to the 1st plaintiff and the 2nd to the 8th defendants who are members of the family by other members to deal with the family land. In consequence of this power the 2nd to the 8th defendants as well as the 1st plaintiff granted a lease of part of the family land which is now in dispute to the 1st defendant. The 1st defendant went on the land and commenced building thereon. The plaintiffs instituted this action claiming as herein-before stated. Their main complaint was that the head of the family did not consent nor subscribe to the giving of the power of attorney to the donees of the power. According to them the head of the family at the time was one Muse Gbadamosi Ajamogun. There had been series of actions among members of the family before the present action and in one of such actions the court found that Muse Gbadamosi Ajamogun, whom the plaintiffs held out as the head of the family at all time relevant to this case, was the head of the family.

The defendants, except the 2nd defendant, averred and led evidence in support of the fact that the head of the family at the relevant time was one Musa Aina Bale and that he consented to the grant of the power of attorney to the 2nd to the 8th defendants and the 1st plaintiff.

The case of the 3rd to the 8th defendants was that the power of attorney was valid and that the lease to the 2nd defendant was equally valid. The learned trial Judge accepted the evidence for the defence and found that Musa Aina Bale was the head of the family.