AYORINDE v. KUFORIJI (2022)

AYORINDE v. KUFORIJI

(2022)LCN/5122(SC)

In The Supreme Court

On Friday, January 07, 2022

SC.27/2008

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Between

OLUFEMI AYORINDE APPELANT(S)

And

CHIEF AYODELE KUFORIJI RESPONDENT(S)

RATIO:

THE SETTLED LAW ON CONFLICTS IN THE EVIDENCE GIVEN BY THE WITNESSES

It is settled in law that where there are conflicts in the evidence given by the witnesses called by the same party to his case, their testimony will be treated as unreliable. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (pt. 7) 393. MARY UKAEGO PETER-ODILI, J.S.C.

THE LAW ON THE CLAIM OF A FAMILY PROPERTY
The law is well settled that the person claiming family property as personal property cannot get a declaration of title. See ATUANYA V ONYEJEKWE (1975) NSCC, 89 at 91; OKELOLA v ADELEKE (2004) 12 NWLR PT. 891 SC, at 319-320. MARY UKAEGO PETER-ODILI, J.S.C.

THE COUNTER CLAIM ON DECLARATION OF TITLE

Although the counter-claim did not seek declaration of title, it was based on the premise that Appellant had no title to the land. Hence, the same fact used as defence to Appellant’s claim for trespass and injunction as heirs in possession from a deemed grantee of statutory right under the Land Use Act were relied upon to prove the counter-claim of Respondent for possession. In such a situation, title is deemed to have been put in issue by the parties. See (26) AGU v NNADI (2002) 18 NWLR PT. 798, SC, 103 at 119-120 paras- G-A. MARY UKAEGO PETER-ODILI, J.S.C.

THE POSITION OF THE LAW ON WHEN EQUITY IS CREATED AND THE PROVE OF TITLE

NO ORAL EVIDENCE IS ADMISSIBLE IN CONTRADICTING THE CONTENTS OF A DOCUMENT

A reiteration of the law is that when any transaction or contract of any grant or other disposition of property has been reduced to the form of document or series of documents, no oral evidence shall be admissible in order to vary or contradict the contents of such document. The documents speak for themselves. See (38) UNION BANK OF NIGERIA V PROFESSOR OZIGI (1994) 3 S.C.N.J 42 AT 55. ANYAEGBUNAM V. OSAKA (2000) 10 WRN 108 At 203 S.C. ADELAJA v. FANOIKI(1990) 21 NSCC PAR 1 PAGE 343.
It is settled in law that a written contractional agreement cannot be varied by parole evidence nor altered by oral evidence hence it is difficult to situate the evidence of DW1, DW2 and DW3 which is tantamount to varying the counters of Exhibits C and D. The import is that the Court below was wrong when it held thus.
“…in my opinion, evidence of DW1 & DW2 did not vary this content of EXHIBIT “C” & “D”. Rather what they said was that, the Kuforiji family council and the persons who executed EXHIBIT “D” as Vendors did not own the land in dispute”. (ITALICS OURS) MARY UKAEGO PETER-ODILI, J.S.C.

THE JUSTIFICATION OF THE INTERVENTION OF THE SUPREME COURT

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): 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:
20. 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;
1. 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.
2. 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,
3. 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
4. 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<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“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.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother Ejembi Eko, JSC and to register the support in the reasonings from which the decision came about, I shall make some comments.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division or Court below or lower Court, Coram: A.A. Augie J.I. Okoro JJCA (as they then were) and A.P.E Awala JCA, delivered on Monday, 11th of December, 2006 in favour of the respondent.

The appellant was the plaintiff in the trial Court while the respondent was the defendant/counter claimant. Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court below unsuccessfully, same as to the head of claim for damages which the lower Court found unproved in the respondent’s counter-claim and so set it aside. Appellant has thus further appealed to the Apex Court.

BACKGROUND FACTS
By writ of summons dated 8th December, 1996, the Appellant as plaintiff commenced an action in the trial Court in a representative capacity for himself and on behalf of the children of Ayorinde family of Fadubi’s compound, Ago-Owu, Toro and Abeokuta. (Pages 4 – 6 of the record). The reliefs sought were as follows:
1. A declaration that the Plaintiff is entitled to a statutory right of occupancy in respect of the land situate, lying and being at No. 8 Labulu Street, Ibara, Abeokuta and Ogun State.
2. N100,000.00 damages for acts of trespass committed by the defendant for going on to the land without any just or reasonable cause.
3. N100,000.00 special and general damages for malicious damage of the fence walls, crops, killing of 45 no laying birds by the defendant on the land in dispute
4. An order of perpetual injection restraining the defendant by himself, servants, agents, privies and assigns from continuing any further acts of trespass on the plaintiff’s. The Appellant pleaded in his statement of claim and evidence in Court that originally the land in dispute was leased vide a leasehold agreement on the 11th day of September, 1954 for 99 years to the foreign Mission Board of the Southern Baptist Convention. The lessors in the Deed of Lease (EXHIBIT “B”) were Messrs Samuel Abraham Kuforiji, Herbert Fredrick Afolabi Kuforiji and Hezekiah Christopher Olajide Kuforiji (all deceased) on behalf of Kuforiji family.

Sequel to the lease, the mission built a house on the said land which was used by the missionaries.

Sometime in 1973, the un-expired terms of the said leasehold was sold to Late Rev. (Dr.) J. T. Ayorinde (Appellant’s Uncle) by the Chief Daniel Johnson Kuforiji and Chief Simeon Olujimi Kuforiji (a son to Samuel Abraham Kuforiji – now deceased) “for they and on behalf of the Kuforiji family” vide a deed of conveyance (EXHIBIT “D”) and duly registered with the Lands registry, Ibadan.

Consequent upon the sale to Dr. Ayorinde, the Baptist Mission surrendered the un-expired term of the leasehold interest in and over the land to the late Rev. Dr. Ayorinde, vide a Deed of Surrender (EXHIBIT “C”) which was duly stamped and registered with deeds register in Ibadan.

Remarkably, while the Baptist Mission awarded to Rev. J. T. Ayorinde as per EXHIBIT “C”, confirmed that original lessors were the Kuforiji family and that upon the grant of freehold interest by the same family of Rev. JET. Ayorinde, their leasehold for 99 years had become extinguished. The above fact is contained in paragraph 7 of the recital to the deed of surrender.

The appellant further pleaded that his (Appellant) father was the blood brother of Late Rev. Ayorinde and both of them were the only children of their parents.

The Appellant was at all times relevant to the case living with the late Rev. Ayorinde from 1973 on that land together with his (Appellant’s) brothers and sisters. The Appellant had also developed the land by building of the house thereon in 1987 and also established a poultry farm thereon keeping sheep, pigs and goat.

Sometime in 1977, the late Rev. Dr. Ayorinde died intestate without issue, while his wife also died sometime in 1996.
It was the case of the Appellant that since late Ayorinde died intestate and upon the death of his wife in 1996, the land devolved on his extended family under native law and custom.

The Appellant further pleaded that the respondent (defendant in the trial Court) trespassed on the said land on 15th September, 1996, a day after the burial of the wife of late Rev. Dr. J. T. Ayorinde.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

CASE OF DEFENDANT
Although respondent led evidence that he had sold the land in dispute, he filed a statement of defence and counter-claim. Respondent further Amended statement of defence and counter claim containing the reliefs at page 77 of the record.

The respondent pleaded at paragraph 12 of his defence as amended that he and his family did not become aware that the Baptist Mission had ceased to be in possession of the land on dispute and had in fact executed a deed of Surrender of the said lease of 11th September, 1954 in favour of the said Dr. James Tanimola Ayorinde until sometime in 1992 when they discovered that the plaintiff was exercising right of ownership thereon and acting contrary to the lease. (page 73 of the record).

The respondent on his own part had this to say about when he knew of the sale of land to Dr. Ayorinde in 1973. At page 89 lines 6-11 under examination in Chief he said:
“The Baptist Mission is no longer on the land. The person on the land was Olufemi Ayorinde, the Plaintiff. I discovered that the Baptist Mission was no longer on the land in 1992. I pass through the land in 1992. I pass through in 1992 when I found that some shops were springing on the land”

The said Respondent admitted at page 91 of the record under cross-examination that:
“I do not know that Dr. J. T. Ayorinde lived and died on the land in dispute in 1977. The father of Olujimi Kuforiji was Samuel Aranda Kuforiji. S.A. Kuforiji and my father were brothers. I know Chief David Jonathan Kuforiji. I was present at the family meeting of 16th and 17th September, 1979”.

The evidence of DW1 called by Respondent at page 57 lines 2-4 of the record contained that the sale of the land to Rev. Dr. Ayorinde was an issue at the said meeting which respondent admitted that he attended on the 16th and 17th September, 1979. The same witness further confirmed that as at the time this suit was instituted the two people who executed the deed of conveyance of the land to Dr. Ayorinde had died. See evidence in Chief of DW1 at page 56 lines 24-32 of the record where he said:
“I am a principal member of the council I know Jonathan Kuforiji, he was my uncle. I also know Chief Olujimi Kuforiji, he is my cousin. They are both dead Jonathan Kufuriji was at a time head of the family”.

The clear implication of this evidence is that respondent waited for all the vital witnesses to die. He did not challenge of Appellant’s possession until the wife of Dr. Ayorinde herself died on 10th August, 1996. See evidence of Appellant at page 51 of the record. The Appellant further testified at page 52 of the record that Mrs. Ayorinde was buried on 14th September, 1996. It was the following day that the defendant came with the thugs. He damaged the gate of the main entrance shouting war songs and poured tirade abuses on me and my family. He destroyed all the poultry equipment on the land”.

The Defendant in his statement of defence and counter- claim (not in a representative capacity) pleaded instructively thus:
That the Kuforiji family land was leased to the Baptist Mission vide EXHIBIT “B” in 1954, That EXHIBIT “D” & “C” did not convey any right or interests in or over the land in dispute to the late Rev. Dr. T.J. Ayorinde and claimed that Kuforiji family never at any time sold any portion of the land in dispute to the late Rev. Dr. J. T. Ayorinde, through whom Appellant, claims root of title. The Respondent therefore counter-claimed the possession of the land and N50,000.00 rent per annum with effect from 1992.

The trial Court on the 15th day of June, 1999 dismissed all reliefs claimed by the Appellant on the ground that the property of late Rev. Dr. J. T. Ayorinde who died intestate has left the realm of native law and custom and metamorphosed into Christian or English law of inheritance and that the vendors have nothing to convey to late Rev. Dr. J. T. Ayorinde.

The Court, while dismissing the entire Appellants reliefs, granted all the reliefs in the Respondent’s counter-claim, including the granting of possession to the Respondent only, notwithstanding, that the Respondent’s evidence that the land belongs to Samuel Abraham Kuforiji, H.F.A. Kurojimi and H.C.O Kuroriji respectively (page 85 lines 2 4). This was amplified at page 113 lines 3—9 where the trial Court held that the three brothers held the land as joint tenants.

Appellant having been dissatisfied with the said judgment filed appeal against the judgment of the trial Court and Respondent’s grounds to the Court of Appeal which also dismissed the appeal and found for the Respondent.

Therefore, the appellant dissatisfied with the said judgment, has now appealed before of the Apex Court of Justice, praying the Supreme Court to set aside the said judgment of the lower Court delivered on 11th December, 2006, declaring the Respondent as the beneficial possessor of the land in dispute. (Pages 206-210 of the records).

On the 12th day of October, 2021 date of hearing, learned counsel for the appellant, Chief Bankole Falade adopted the brief of argument filed on 18/5/2020 and reply brief filed on 16/3/2020. He donated three issues for determination, viz:-
1. Whether having regard to the undisputed fact that appellant was a nephew to Late Rev. Dr. Ayorinde, the grantee of the land in dispute as per Exhibit “D” and who died intestate leaving no surviving issue safe the appellant, the lower Court was right to hold the appellant who was in possession of the land, had no locus standi to sue for trespass on behalf of other nephews and nieces of late Rev Dr. Ayorinde (grounds 3 & 10).
2. Whether the Court of Appeal rightly held that appellant did not prove a better title to the land in dispute, as against the respondent notwithstanding the probative value of Exhibits B, C and D tendered by the appellant vis-a-vis the issue dixit of respondent and his witness to the contrary and thus dismissed the claim of the appellant and uphold the counter-claim of the respondents (grounds 1, 2, 4, 6, 7 and 9)
3. Whether the Court of Appeal rightly held that the defences of Limitation law and laches and acquiescence did not hold against the counter- claim of the respondent the overwhelming evidence and the combined provisions of Section 16 of the Court of Appeal Act, 1982, Section 222(a) of the Constitution of the Federal Republic, of Nigeria 1979 and Section 16 of the Limitation Law Cap 16 of the Laws of Ogun State (grounds 5 & 8)

Learned counsel for the respondent, Oluseye Chukwura adopted the brief of argument filed on 12/12/2019 and distilled four issues and argued a preliminary objection.
i. Whether the lower Court was right to set aside the mesne profit awarded by the trial Court when it was pleaded and evidence was led in proof thereof on the record without any contradiction or controversy by the Appellant
ii. Whether this is not a proper case for the Court of Appeal to invoke its power under Order 3 Rule 23 of the Court of Appeal Rules to limit the entitlement of the Respondent to the N50,000.00 (Fifty Thousand Naira) pleaded and claimed
iii. Whether an Appellant can challenge concurrent findings of fact by two lower Courts without establishing and convincing the Supreme Court that the findings by the two lower Courts were perverse.
iv. Whether grounds 1, 4, 5 and 7 of appeal contained in the further Amended Notice of Appeal and the issues formulated thereon are not liable to be struck out for incompetence.
v. Whether issues raised for the first time at the Supreme Court without leave of Court are not liable to be struck out

There is no gainsaying that the Preliminary Objection would be first tackled before anything else as on it depends the competence of the appeal and the jurisdiction of the Court.

PRELIMINARY OBJECTION
Learned counsel for the respondent/objector contended that grounds 1, 4, 5 and 7 of the grounds of appeal are incompetent as they allege error in law and misdirection of fact which are incompetent and cannot be amended. He cited Okwuosa v Gomwalk (2017) 9 NWLR (pt. 1570) 259 etc. That appellant raised fresh points for the first time at the Supreme Court without seeking leave of Court and proceeded to predicate the issues in its brief of argument on the fresh grounds. He referred to PDP v Sheriff (2017) 12 NWLR (pt. 1588) 219 etc.

Learned counsel for the appellant/respondent by stating that it was not true that grounds 1, 4, 5 and 7 in the further Amended Notice of Appeal are new grounds and so are competent. Also that the fresh issues were done after the Court granted leave to so argue the fresh issues of grounds of law and facts.

He urged the Court to dismiss the preliminary objection. I am persuaded on the position of the appellant on the Preliminary Objection which I dismiss so the merit of the case can be attended to.

ISSUES 1
1. Whether having regard to the undisputed fact that appellant was a nephew to Late Rev. Dr. Ayorinde, the grantee of the land in dispute as per Exhibit “D” and who died intestate leaving no surviving issue safe the Appellant, the lower Court was right to hold the appellant who was in possession of the land, had no locus standi to sue for trespass on behalf of other nephews and nieces of Late Rev. Dr. Ayorinde.
Canvassing the position of the appellant, learned counsel contended that the Court below was wrong to resolve the issue of locus standi because of the approach it used, and so came to an erroneous conclusion. He cited Egolum v. Obasanjo (1999) NWLR (pt. 611) 355 at 385 etc.

That the appellant had founded his claim on inheritance and had not sued only for himself but in a representative capacity. He referred to Salubi v. Nwariaku (2003) 7 NWLR (PT 819) 426 at 415-452; Section 49 (1) (a) (3) of the Administration of Estate Law of Ogun State.
For the appellant, it was further submitted that the family property in a customary holding and English law had no provision on it, hence the locus standi of the appellant and those he represented was not in doubt. He cited Lewis v. Bankole (1908) 1 NLR 81; Gaji v. Paye (2003) 8 NWLR (pt. 823) 583 at 609.

Learned counsel for the respondent contended that at the trial, the appellant claimed they inherited under native law and custom without leading evidence on the native law and custom as required by law. He cited Ogunleye v Oni (1990) 2 NWLR (pt. 135) etc.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

That it is the respondent who has the locus standi to institute the counter-claim and proved same. That a plaintiff must succeed on the strength of his case and cannot rely on the weakness of the defendant’s case. He cited Kodilinye v. Odu (1935) 2 WACA 336 etc.

ISSUES 2 & 3
2. Whether the Court of Appeal rightly held that the defences of Limitation Law and laches and acquiescence did not hold against the counter-claim of the respondent the overwhelming evidence and the combined provisions of Section 16 of the Court of Appeal Act 1982, Section 222(a) of the Constitution of the Federal Republic of Nigeria 1979 and Section 16 of the Limitation Law Cap 61 of the Laws of Ogun State.
3. Whether the Court of Appeal rightly held that appellant did not prove a better title to the land in dispute, as against the respondent notwithstanding the probative value of Exhibits B, C and D tendered by the appellant vis-a-vis the ipse dixit of the respondent and his witness to the contrary and thus dismissed the claim of the appellant and uphold the counter-claim of the respondent.

Learned counsel for the appellant contended along the following lines.

1. That on the contrary, that it was the Respondent that lacks locus standi to institute the counter-claim over a family land which he was not the only survivor. The Respondent sued in his personal capacity and did not sue as a family representative Respondent also admitted that he sold the property for N600,000.00 (Six Hundred Thousand) only all alone.
2. That the counter-claim having been filed on 1st August, 1996 was caught by SS.9 and 16 of the Limitation Law of Ogun State and therefore extinguishes Respondent’s right to the land after 23 years of adverse possession.
3. The Court of Appeal wrongly over looked the defence of lashes and acquiescence which was made out in the statement of Defence to the Counter-Claim and therefore failed to consider it to enable it decide right to the title of the Land in line with the case of IDUNDUN V. OKUMAGBA.
4. That the vendors of Exhibit D were not strangers to the land in dispute as such had capacity to convey the property as family land under the native law and custom.
5. That the decision of the Court of Appeal that the Respondent proved better title was erroneous. The facts upon which Respondent base his decision is nebulous and predicated on contrary IPSE DIXIT as to root of title, nature of interest vested on him and capacity. Whereas the case of Appellant was unassailable as per quality of evidence. Also being the party in possession and on the strength of Exhibits C and D.

He cited numerous judicial authorities but I shall cite a few, thus:-
1.Forestry Research Institute of Nigeria v. I.A. Enafoghie Gold (2007) 11 NWLR (pt 1044) 1 at 16.
2. Odekilekun v Hassan (1997) 12 NWLR (pt 531) 56 at 78
3. Atuanya v. Onyejekwe (1975) NSCC 89 at 91
4. Bosah v. Oji (2002) 6 NWLR (pt. 762) 137 at 158
5. Adedeji v. Oloso (2007) pt. 1026 SC 133 at 172
6. Tinubu v. Khalil & Dibbo Trans Ltd (2001) 11 NWLR (pt. 677) 171 at182-183
7. Ugwu v Ararume (2007) 12 NWLR (pt. 1048) 367 at 453
8. Akinpelu v Adegbore (2008) 10 NWLR (pt. 1096) 531 at 559-560.

The learned counsel for the respondent countered, stating thus:
1. The Respondent has locus Standi to prosecute his counter-claim as the legal tenet of the jus accrescendi rule of joint tenancies is sufficiently trite to warrant no debate. The Appellant did not challenge the locus of the Respondent at the trial Court or at the Court of Appeal.
2. The Court of Appeal was right to discountenance the defence of laches and acquiescence founded on rationes in Idundun v Okumagba (1976) 1 NMLR 200 because the Appellant did not properly bring the defence within the ambit of the case and he did not particularize the defence in his pleadings at the trial Court.
3. The Respondent clearly proved a better title than the Appellant who tendered Exhibit B, C and D which turned out not to be a good root of title as the vendors of Reverend (Dr.) J.T. AYORINDE, the Kuforiji Family Council, were strangers to the land in dispute. The Respondent was able to show by Exhibits G, H and J-J13 tendered through DW2, without objection, that the land in dispute belonged to S.A. Kuforiji, H.F.A. Kuforiji and H.C.O, Kjuforiji to the exclusion of the Kuforiji Family Council. This was corroborated by Exhibit F, the Minute Record Book of the Kuforiji Family which attested to the fact that at its meeting of 16th and 17th September, 1979 the Kuforiji Family Council denied ownership of the land or sale thereof to Reverend (Dr.) J. T. Ayorinde. All these were consistent with the Respondent’s claim of title.
4. The Court of Appeal was clearly right to hold that Section 49(1) of the Administration of Estates Law of Ogun State has no bearing on the case of the Appellant put up at trial Court. He specifically predicated his case on native law and custom which he failed to prove.
5. The Respondent pleaded the mense profit in paragraph 25 of the Statement of Defence and Counter-claim at p 70 of the record of appeal. The Respondent also made a specific claim for mesne profit at p 70 of the record of appeal. The Respondent led evidence by DW3, one Kunle Olubode, at pp 86-87 of the record of appeal that the average rental value of the property on the land is approximately N30.00 per sq. metre per annum in 1992 and N50.00 in 1996 or thereabout. The learned trial Judge, in his judgment, awarded N30.00 per sq. metre from November 1992 until he finally surrenders the land at p 117 of the record of appeal.
6. This is a proper case for the Court of Appeal to invoke its powers now under Order 4 Rule 4(b) of the Court of Appeal Rules 2016. The Order empowers the lower Court to reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded…’ Or Order 4 Rule 4(a) of the Court of Appeal Rules 2016 substitute for the sum awarded by the Court below such sum as appears to the Court to be proper.’ An Appellate Court on when the justice of a case demands, amend a ship by the trial Court.
7. The Supreme Court does not temper with concurrent findings of fact of lower Courts just for the sake of it when there is no perversity in the findings and which findings are borne not of the evidence before the trial Court.

He cited Adeniran V Alao (2001) 18 NWLR (pt 745) 361; Olosunde V Oladele (1991) 4 NWLR (p 188) 713; Ngene v Igbo (2000) 4 NWLR (pt 651) 131 at 146-147; A.G Bendel State v. Aideyan (1989) 4 NWLR (pt. 118) 646 at 680-681, Kazeem v Mosaku (2007) 17 NWLR (pt. 1064) 523 etc.

The Court below had found that appellant had no locus standi of the land, this posture the appellant considered novel and out of place. Indeed the stance taken by the Court below is strange in the light of the fact that appellant was making his case under the Administration of Estate Law. Also, it is not how a cause of action is described that is important but the facts averred to in support of the relief that the law recognises and the Court will be favourably disposed to grant. See Egolum v Obasanjo (1999) NWLR (pt. 611) 355 at 385; Olorunkemi Ajao v. Sonola (1973) 5SC 199 at 123; Labode v. Otubu (2001) 7 NWLR (pt. 712) 255 at 290.

I shall reproduce the holding of the lower Court which was to the effect that appellant had no locus standi to sue for the clarifying effect of a wrong approach taken by a Court which eventuated an erroneous outcome. Okoro JCA (as he then was) had held in the Court below thus:-
“The plaintiff had stated in his statement of claim and at the trial that he derived his title under customary law based on EXHIBIT “C” & “F” the learned trial Judge had held that EXHIBIT and that he inherited nothing since Rev. Ayorinde had and proved the said customary law. This Court had earlier agreed with this reasoning of the learned trial Judge. It goes without saying that the Appellant had no legal interest on the land; he lacked the capacity or locus standi to sue as plaintiff in this case.”
This position with respect cannot stand against the undisputed and pleaded facts of this case and law. It thus occasioned a miscarriage of justice, as the Court having rejected the locus standi of Appellant found no ground on which his case could have been sustained.
The reason is that the Appellant founded his claim on inheritance. He sued not only for himself but in a representative capacity. He applied and was granted leave to sue by the learned trial Judge. It was upon that leave that the action was instituted. See page 1 of the record; and the motion ex-parte which preceded the institution of the suit at page 4 of the record.
In the affidavit supporting the motion ex-parte sworn to by the Appellant at page 5 of the record, and within the background set out in the affidavit, no other person had a better locus standi to sue the Defendant/Respondent than the appellant. This is because Rev. Dr. J.T. Ayorinde who actually died possessed of fee simple title in the land, died without an issue and his wife also died without an issue and intestate, while Appellant was living in the property with the Rev. Dr. J. T. Ayorinde as his nephew in his lifetime and for more than 18 years thereafter until this action as instituted.
The entirety of estate of intestacy devolves as residuary estate. See (4) SALUBI V NWARIAKU (2003) 7 NWLR PT. 819, SC, 426 AT 415-452, 1.
I refer to Section 49 (1) (a) (3) of the Administration of Estate Law of Ogun State. For its significance in resolving this issue I hereby set it out:
“S.49 (1) The residuary estate of an intestate shall be distributed in the manner or be held on the trust mentioned in this section, namely,
(a) If the intestate leaves a husband or wife, then in accordance with the following table: if the intestate.
(1) Leaves:
(a) No issue and
(b) No parent, or brother or sister of the whole blood or issue of a brother or sister of the whole blood.
The residuary estate shall be held in trust for the surviving husband or wife absolutely.
(2) …
(3) Leaves one or more of the following, that is to say, a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood but leaves no issue. The surviving husband or wife shall take the personal chattels absolutely and, in addition to the residuary ESTATE OF THE INTESTATE (other than the personal chattels) shall stand charged with the payment of a net sum of money equivalent to the value of two third of the residuary estate; free of cost. To the surviving husband or wife with interest thereon from the date of the death at the rate of two and half naira per cent per annum until paid or appropriated and subjected to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held.
(a) As to one half in trust for the surviving husband or wife absolutely, and
(b) As to the other half-
(i) Where intestate leaves one parent or both parents, (whether or not brothers or sisters of the intestate or their issue also survive) for the parent absolutely or as the case may be, for two parents in equal shares absolutely.
(ii) Where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole of the intestate”.
(Underlining supplied for emphasis)
From the above statutory provision, it is clear, that, the intestacy did not absolutely vest in the wife of Rev. Dr. J.T. Ayorinde who survived him, since she did not have any issue and the property was not personal chattel as envisaged under Subsection (1) (a) and (3). The spouse having died without an issue, the settlement in her favour as to the property representing two third of the intestate(2/3rd) also failed.
The deceased intestate also left no parent, the one half of the remainder to his failed, and finally only the appellant as child of the only sibling of the intestate survived him. It followed that the appellant had beneficial interest in the property of Rev. Dr. J.T., Ayorinde of virtue of Section 49 (1) (a) (3) stated above.

By virtue of Section 1 (3) of the Administration of Estate Law, customary law of succession applied to the inheritance of the residual estate, once the portion due to the spouse is reckoned without. The Section reads-
“Nothing in this law affects the administration of the estate of deceased persons by or under the authority of any customary Court nor unless otherwise expressly provided the distribution, inheritance or succession of any estate where such distribution, inheritance or succession is governed by customary law whether such estate is administered under this law or by or under the authority of a customary Court”.
I posit humbly, that the Appellant did not inherit the intestacy in his own; but as child of the brother of the intestate. Upon the property devolving to them, it is the personal law of their father through whom they inherited that applied.
The Appellant pleaded that he and his siblings succeeded to the property under customary law and custom. This contention was not appreciated by the lower Court. The Court of Appeal was totally misdirected in resolving the issue on the basis of the personal law of Rev. Dr. J.T. Ayorinde. Hence their lordships cited and followed at page 197 of the record the cases of (5) OLOWU V OLOWU (1985) 3 NWLR PT. 13 SC, 372 at 390; (6) COKER V COKER (1943) 7 NLR 55 and (7) COLE V COLE (1898) 1 NLR 15.
Those three cases dealt with the law governing inheritance by direct children of a person. None dealt with a case like that under appeal, where relation is the only surviving beneficiaries. In OLOWU’s case for instance, the Supreme Court held that there is no fetish about the personal law which will govern the distribution of estate of an intestate The deceased was an Ijesha man who was living in Benin and was assimilated into the culture of his place of domicile by being converted into Benin man with the authority of the Oba of Benin. The Supreme Court held that his Estate was liable to be distributed in accordance with the Benin custom which he adopted in his lifetime, and not Ijesha custom. According to BELLO JSC (as he then was) at page 381 of the report:
“The word ‘naturalization’ which takes place when a person becomes the subject of a state to which he was before an alien is a legal term with precise meaning. Its concept and content in domestic and international law have been well defined. To extend its scope so as to include a change of status which talks under native law and custom, when a person becomes a member of a community to which he was before a stranger, may create confusion. I would prefer to describe a change of status under customary law as culturisation. I may add that culturisation with its resultant change of personal law may take place by assimilation by choice …<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Going further at page 390 his Lordship said:
“…it may be observed that change of personal law choice is not new or our legal system. It has been with us since 1898 the classical case of Cole v Cole (1898) NLR 15, which has been followed by a plethora of cases since then, converts into an English man or woman for the purpose of distribution of his or her estate upon his death intestate any Nigerian irrespective of his or her customary law who contracts a marriage by Christian rites or according to English law. The decision in Cole v Cole was given statutory recognition in Section 36 of Marriage Act, Cap, 115 Laws of the Federal of Nigeria and Lagos 1958 …”
The crux of the above exposition is that the personal law of an intestate which determines inheritance of his property by his direct beneficiaries depends on the circumstances of each case; there is no hard and fast rule that children born out of wedlock to a man married under the Act but who lived his life as a polygamist must be deprived of inheritance; nor that customary law does not govern the distribution of same after it has vested in relations such as Appellant in this case. The sub-beneficiaries will distribute according to the applicable personal law be it English or customary.
See OLOWU’S CASE (SUPRA) per OPUTA JSC at 402-404 stating thus:
“In Cole v Cole 1 NLR 15 the issue was whether customary law or English law was the applicable law. From the facts and circumstances of that case, it was held that English law of succession will prevail over customary law. Much therefore depend on the facts and circumstances of each individual case”
In this case Appellant stated that the estate of his uncle which devolved on them was held under customary law as family property. There was no challenge to this assertion by any of the beneficiaries. The Respondent did not claim under the intestacy but against the estate. The Cole v Cole lines of cases were with the greatest respect wrongly invoked and applied by the lower Court when their lordships held at page 197 of the record that they had “no reason to fault the learned trial Judge on his conclusion having regard to the line of cases already cited on this issue i.e. OLOWU V OLOWU (supra) Coker v Coker (supra), Cole v Cole (supra).”

It is therefore trite that any member of the family can sue in order to protect the family property including his own interest where his interest or that of his/her family is threatened.
I refer to the following cases:
(8) MOZIE v MBAMALU (2006) 15 NWLR (PART 1003) AT 466 S.C. Pt. 473, 493
(9) INAKOJU V ADELEKE (2007) 4 NWLR, PART 1025. PP 601-602,
(10) EZEKUDE V ODOGWU (2002) 3 NWLR (PART 784) 366, P. 373
(11) MELIFONWU V EGBUJI (1982) 9 S.C. 145

It is reiterated that family property in Nigeria is a customary holding and English law has no provision for family holding. The appellant pleaded that the land was family property and proved same. Hence his locus standi was not in doubt. Family property can be established in a number of ways which include succession upon death intestate of the original owner as in his case. See (12) LEWIS v BANKOLE (1908) 1 NLR 81; (13) GAJI v PAYE (2003) 8 NWLR PT. 823, SCM, 683 at 609 per Tobi JSC-
“Family property could be created by a number of ways, including death intestate (devolution), conveyance inter vivos, will and gift or allotment. For land to qualify as family, the party who so claims must not only identify the origin of the property but also it status”

The Appellant successfully established his family interest in the land in dispute as a family property by showing his relationship with late Rev. Ayorinde from the property devolved onto him and siblings without issue and the death of his wife without issue. It has long been settled that real estate the successions to which are not possible by testamentary disposition devolves under native law and custom to heirs, without letter of admission. See (14) TORIOLA V WILLIAMS (1982) VOL. 13 NSCC 187 at 194 lines 40-62.

Upon the death intestate of Rev. Dr. J. T. Ayorinde and his wife, there was no person to make testamentary disposition of the land. Hence the default provision that same devolves on children of Rev. Dr. J. T. Ayorinde’s brother. These are the people represented by appellant as plaintiff in the trial Court and in this appeal.

TORIOLA’S case was cited to lower Court but in the belief that the property case was controlled by OLOWU’S line of cases the lower Court did not consider same. As now shown those cases followed by the Court below are patently inapplicable. The succession of children to their father’s estate in intestacy under Yoruba native law and custom, as pleaded and proved by appellant is a customary law that has been judicially affirmed and noticed in several cases. By virtue of Section 14 of the Evidence Act and does not require a laborious proof. See (15) KAREEM V OGUNDE (1972) NSCC VOL. 7, PAGE 60 AT 65

A point that has arisen in this case is that of justiciability which question is determined at the preliminary stage by the utilisation of the plaintiff’s claim alone. I rely on Shell- BP Petroleum Dev. Co of Nigeria at 94; Badejo v Fed Ministry of Education (1996) 8 NWLR (464) 15 at 43

The issues that came out from the statement of claim and proved are thus:
i. Appellant built a block of four (4) lock up shops on the land in dispute since 1987
ii. Appellant had been living on the land in dispute from 1973 up to the date of trial and judgment at the trial Court, and up till date of judgment at the Court of Appeal, and also runs a poultry farm thereon.
iii. Respondent constructed a wall fence round the Appellant’s lock up shops in 1996.
iv. Respondent resorted to self-help by invading the land in dispute with soldiers when the Appellant resisted entry of the Respondent on the land in dispute.
v. Invasion of the Appellant’s property by the Respondent sometimes in 1996, resulted in the death of Appellant’s 45 (forty five) laying birds causing economic loss to the Appellant
vi. Evidence of the Appellant in support of paragraph 3 (i)-(vi) hereinbefore contained showed that the conduct of the Respondent thereof affected the legal right, interest and obligations of the Appellant which the lower Court has duty to protect

Clearly from the points above adumbrated, the appellant who had been in possession of the land not only had an interest but definitely the locus standi to institute the suit leading to the present stage.

This Court upon the motion of the appellant, granted leave to the Appellant to raise the issue of jurisdiction which is fundamental hence there is nothing precluding a party from raising the defence of statute of limitation at an Appellate Court but with leave of the Appellate Court even though it was being brought up for the first time and it was not so at the trial Court. Therefore with the Appellant seeking leave and obtaining leave of the Court of Appeal could bring the statute of limitation matter up.

I refer to Section 6(2) and 16 of Limitation Law, Cap 61 Laws of Ogun State 1978. They stipulate thus:
“6(2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued some person though whom he claims, to that person:
Provided that if the right of action first accrued to the state through which the persons bringing the action claims, the action maybe brought at any time before the expiration of the period during which the action could have been brought by the state or of twelve years from the date on which the right of action accrued to some person other than the state, whichever period first expires”.
S.16 “Subject to the provisions of Section 9 of the law, at the expiration of the period prescribe by this law for any person to bring an action to recover land (including redemption) the title of that person to the land shall be extinguished”.
I agree with learned counsel for appellant, that Section 9 to which Section 16 is made subject, deals with land held in trust. This is not the case here. The Oyo State and Lagos State equivalent of this provision of the Ogun State limitation law have been interpreted by this Court. See (19) ODEKILEKUN V. HASSAN (1997) 12 NWLR (PT 531) S.C. 56 PER IGUH 1 JSC at 78.
The Court held further:
“Can the exclusive and long adverse possessors of land maintain an action in trespass against a former owner thereof whose title had been effectively extinguished by operation of law, such as Limitation Law of Western Nigeria, 1959, or the land through the original owner but after the title of such an original owner had been lost? My answer to the above question must be in affirmative. See ODUBEKO V FOWLER and BELIZE ESTATE and PRODUCE CAMPAN LIMITED V QUILIER …”
The emphasis in the judgment of IGUH JSC is that, extinguishing is not the same things as mere statutory bar, which denies access to Court only but leave the adverse owner to his device as to how he may recover the land. In the case of extinguishment, the right is as though it never existed and title is vested in the party in possession for the period.
Whereas in ordinary statute bar scenario, jurisdiction of Court is not ousted once the issue is raised. See ELABANJO v DAWODU (2006) 15 NWLR PT. 1001, SC, 76 AT 151-152 CHIGBU v TONIMAS (2006) 9 NWLR PT. 984. CF. (22) MAJEKODUNMI V. ABINA (2002) 3 NWLR (PT. 755) SC, 20 AT 764.
In the case of ABINA (supra) this apex Court drew the distinction between extinguishment and statute bar cases under the equivalent provision of the Limitation Law of Lagos State per OGWUEGBU, JSC as follows:
“There is no doubt that an adverse possessors of land who establishes his title under Section 21 of the Limitation Law is a person entitled, at law or in equity to an estate in fee simple, in that land may apply to be registered in the registry as owner in fee simply of the land”.
His Lordship confirmed that the title acquired by extinguishment of adverse title vide Limitation Law is cause of action on its own not just a defensive shield. He states at pages 764 – 765.
“In order to acquire title by the Limitation Law, a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession in an action. The cases of:
(22) AJIBONA V KOLAWOLE & ORS (1996) 10 NWLR (PT-.476) 22; ODEKILEKUN v HASSAN & ORS. (1997) 12 NWLR PT. 531 P. 56 and SOSAN & ORS. V ADEMUYIWA (1986) 3 NWLR (PT. 27) 241 referred to by learned counsel for the real owners against the adverse possessors for declaration of title to land or possession and the defendants raised the plea of limitation”.
The point has to be made that the title of Respondent (even if there was any) had extinguished on the 12th anniversary of his knowledge of the deed of conveyance of the land to Rev. Dr. Ayorinde on 1974 by virtue of EXHIBIT “B” at the Kuforiji family meeting on 17th September, 1979. By 17th September, 1991 a period of 12 years elapsed and Respondent’s title was extinguished by virtue of Sections 6 and 12 of the Limitations Law of Ogun State. After such extinction of their adverse right, no right to possession remained in the Respondent nor could the Respondent’s possession be vested in him as plaintiff. See ODEKILEKUN’S case (supra) page 78.
“A plaintiff in exclusive possession of land may quite rightly institute an action in trespass to protect his right to retain and to undisturbed enjoyment of land against all wrongdoers except a person who can establish a better title, It will not matter that such a plaintiff retains his exclusive possession of the land pursuant to the provision of the Limitation of Law”.
On the other hand, the appellant had been in exclusive possession of the land for over 23 years from 1974 before the defendant intruded which intrusion led to the initiation of the suit in 1976 and so when the Respondent filed his counter-claim for possession, the jurisdiction of the High Court was not in existence.
The High Court is a creation of Constitution or statute. See Section 9 of the High Court Law, Cap. 44 Laws of Ogun State 1978; Section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979 applicable to the suit when it was filed in the trial Court. By the latter, the original and unlimited jurisdiction vested in the High Court of a State is to determine “…Any civil proceedings in which the duty, liability, privilege, interest, obligation or claims is in issue …”
A literal reading of these explicit legislations shows that the High Court is only vested with jurisdiction to entertain claims recognized by law. If the law says a right is extinguished the Court has no jurisdiction to recognize and give remedy for such right.
In the same rein, where a High Court in the erroneous belief that it has jurisdiction to grant a relief which by law has been extinguished, the Court of Appeal has no right or jurisdiction to affirm such claim. The power of rehearing vested in the Court of Appeal under Section 16 of the Court of Appeal Act, 1982 applicable to this case is co-extensive with the original jurisdiction which a trial Court might have exercised rightly or wrongly in the matter, If the trial Court had no jurisdiction at all to grant or recognize such right the Court of appeal as conferred by Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 applicable at the time the appeal was lodged and decided in the lower Court.
It follows that the decision of the Court of Appeal affirming the judgment of the trial Court for the Respondent in respect of the counter-claim in this matter was without jurisdiction.
Applying the above propositions of the law to the issue under discussion the undisputed facts of this case clearly establish that the lower Court acted without jurisdiction in affirming the judgment for the Respondent in respect of land over which by law his title had been extinguished.

The facts of this case that are not in dispute are that upwards of more than 16 years the respondent was aware that the land in dispute had been sold to Rev. Dr. Ayorinde as far back as 1974 by the Kuforiji Family. The land was sold as a family land. The parties who executed the deed of conveyance of the sale in favour of Rev. Ayorinde were the then head of the family and a member who happened to be respondent’s cousin.

The counter-claim by which Respondent asserted the adverse claim of the plaintiff/Appellant against trespass committed on the land in dispute of Respondent and which counter-claim was filed on 1st August, 1997.

The following points are to be noted:
i. It was common ground that Respondent was aware of EXIHIBITS “C” and “D” executed in 1973 as far back as 1979 and was fixed with notice of these deeds from the date they were registered in 1973 and 1974 respectively.
ii. The title granted and possession asserted pursuant to EXHIBITS “C” and “D” are adverse to the title alleged by Respondent to the land in dispute by the country claim;
iii. Section 16 of the Limitation Law of Ogun State EXTINGUISHES the title of any person to a land, if he failed to bring an action to recover the land within the period of twelve years prescribe for so doing under Section 6(2) thereof
iv. Where right of action is not just barred but extinguished, the jurisdiction of the Court to entertain same is ousted as decided in MAJEKODUNMI’S case (supra) whereas the right of action is merely barred as decided in CHIGBU v TONIMAS (2006) 9 NWLR PT. 984, the constraint to jurisdiction is only procedural and will not avail unless it is raised as defence.
(Underlining supplied for emphasis)

Indeed the counter-claim of Respondent was justiciable and within the jurisdiction of trial Court and Court of Appeal having regard to the combined provisions of Section 16 of the Limitation Law, Cap, 61 of Ogun State and Section 16 of the Court of Appeal Act, 1982, Section 230 of the Constitution of the Federal Republic of Nigeria, 1979 and 241(1) of the Constitution of the Federal Republic of Nigeria 1999 pursuant to which the appeal was heard in the lower Court.

A trip back in time with the facts show that Respondent was sued on trespass in his personal capacity and he defended himself and counter–claimed against the Appellant in his personal capacity.

However, the case was resolved in the lower Court in his favour on the basis that the land in dispute belongs to him and his siblings as child of the sole survivor of the ‘alleged’ original three join owners of the property namely the lessors in Deed of lease (EXHIBIT “B”). They were Messrs Samuel Abraham Kuforiji, Herbert Fredrick Afolabi Kuforiji and Hezekiah Christopher Olajide Kuforiji (all deceased). The learned Justices of the Court below concurring with the judgment of the trial Court.

It seems to me that the case of the Respondent as pleaded and proved was at variance with the finding of their Lordships. The Respondent never pleaded that the other two signatories to EXHIBIT “B” apart from his father died without an issue to warrant operation of the rule of jus accrescendi.

Respondent’s case as pleaded in paragraph 6(a) and 7 of the further amended statement of defence and counter-claim was that three signatories to EXHIBIT “B” died “leaving several children” and that the property devolved to Respondent and his siblings after the death of their three progenitors under native law custom. The paragraphs read:
“6a. Further to paragraph 6 herein, the said Samuel Abraham Kuforiji (deceased), Herbert Fredrick Afolabi (deceased) and Hezekiah Christopher Olajide Kuforiji (deceased) as died leaving several children each.
7. Upon the deaths of the said Samuel Abraham in 1954, Herbert Fredrick Afolabi in 1965 and Hezekiah Christopher Olajide in 1969 the land in dispute and buildings thereon devolved onto the defendant and his siblings under native law and custom”. (page 38 of the record).
(Underlining supplied for emphasis)

The above were facts pleaded in defence to Appellant’s claim, by the Respondent, but they were repeated by incorporation in the counter-claim at page 41 of the record. Respondent further alleged that he instructed his solicitors to terminate the lease against the lessors in EXHIBIT “B” in 1992 for breach of covenants. In consequence Respondent claimed possession and mesne profits for himself. To support this case, the Respondent called DW1 who testified at page 56 inter alia,
“I know the defendant. He is my cousin. I know the land in dispute. I know his father. His late father was Hezekiah O. Kuforiji, the late Balogun Kente. I know the land in dispute, I know the Kuforiii family council. The composition is from descendant of Sunmonu Animawun Gbemisola Kuforiji. The land in dispute was owned by the uncles of the witness, three of them, they are S. A. Kuforiji and H.C.O. Kuforiji, the father of the defendant the children succeeded them in title … See page 56 of the record

This evidence is in sharp contrast with the evidence of Respondent himself when he testified in one breath as follows:
“I know the land in dispute belongs to my late father. I know S A. Kuforiji. He is now dead. He died in 1954. I also know F.F.A. Kuforiji. He is also dead. He died in 1965. I also know H. C O. Kuforiji. He is my father and he is dead. He died in 1969. He had four wives. He had only 15 children. The three of H. F. A Kuforiji, S. A. Kuforiji and H.C.O. Kuforiji did not share the land. The land was never portioned, the land now belongs to me and my brothers. We inherited the land from our father”. (Underlined supplied for emphasis)

In another breath, as claimed personally for him, the Respondent testified.
“I passed through the land in 1992 when I found that some shops were springing up on the land. I told my lawyer Mr. Chukwura to write to Baptist Mission Counsel seek to tender certain documents, letter of counsel to Baptist Mission and the reply. No Objection tendered and marked EXHIBIT “K”–“K3”. I later went to town planning to enquiry (sic) about the ownership of the land. I also inquired at the time. They said that the land was not among J. T. Ayorinde’s property.
I did not go on to the plaintiff land with any thugs. I did not kill the plaintiff’s chicken or destroyed his property. It was the plaintiff who reported me to the police when he went to survey the land. I’m not a land speculator. The plaintiff was written by my counsel to quit from the land … the plaintiff did not give up possession after receiving the letter.
I want the Court to recover my father’s land from the plaintiff. The plaintiff should also be made to pay the arrears of rents”. (Page 89 of the record)

In yet another breath the Respondent said he had sold the land which he wanted to recover, for N600,000.00 to one J. Y. Under cross-examination by Appellant’s counsel, Respondent said:
“I settled in Ibadan after discharge from the Army and finally settled in Abeokuta in 1980. There was no development on the land then. I did not see any lock-up shops on the land in 1987. I only observed this in 1992. It was the person to whom I sold the land to that fenced it. I sold the land to T. J. I sold the land for N600,000.00. Do not know any than my father about the land. My father did not convey the land for Mr. J. T. Ayorinde I know the wife of Dr. Ayorinde. She is dead. She died in 1996”.

None of the three versions of the case made by the respondent above, considered alone or cumulative, in line with the pleading, can support the decision of the lower Court finding on locus standi for respondent to institute the counter-claim. He could not have counter-claimed for possession for himself as he did if as proved the property devolved to all the children of the three lessors in EXHIBIT “B”.

Respondent could not have sold the land, if the property was his father’s who had four wives and 15 children as he claimed. A fortiori, respondent was not entitled to claim the land as his father’s.

The proper capacity, in which possession of the land could have been wrested from Appellant by respondent, was if he counter-claimed for the land as a family property of the children of the three signatories to EXHIBIT “B” and the Court found that the property belonged to those three i.e. S.A. Kuforiji, H.F. A. Kuforiji and H.C.O. Kuforiji exclusively.

The law is well settled that the person claiming family property as personal property cannot get a declaration of title. See ATUANYA V ONYEJEKWE (1975) NSCC, 89 at 91; OKELOLA v ADELEKE (2004) 12 NWLR PT. 891 SC, at 319-320.

What has been thrown up is that the lower Court was wrong to have found for respondent on the issue of locus standi. This is more so when the respondent admitted under cross-examination that Olujimi Kuforiji who signed EXHIBIT “D” was the son of his uncle S.A. Kuforiji, one of the three signatories to EXHIBIT “B” thus:
“The father of Olujimi Kuforiji was Samuel Atanda Kuforiji, S. A. Kuforiji and my father was brother. I know Chief David Jonathan Kuforiji.” (Page 91 of the record)

A view into the counter-claim the respondent who was defendant in the main claim averred as follows:-
“19 the counter-claimant herein (hereinafter referred to as the ‘the Defendant’) is the owner of the land in dispute together with all the other children of the Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession thereof ”

The Respondent also led evidence that upon his trespass on the land, he personally sold the same for N600,000.00 (Six Hundred Thousand Naira) only.

The case of CHINWEZE V MASI (1989) 1 NWLR PT 97.S. C P. 254 does not support the principle that a single child of one of the three alleged joint tenants and all of whom died survived by issues, is entitled to claim ownership of the land under the rule of jus accrescendi as held by the lower Court. A joint tenancy remains joint amongst the children who survived the joint tenants until it is divided. See SHONEKAN V SMITH (1964) NSCC 129 at 33 …
Although the above case of Shonekan (Supra) was based on settlement, it is my humble view that in family property under customary, law, each member only has life interest and the property is vested in all the children and descendants in perpetuity until it is partitioned. See ALAO v AJANI (1989) 4 NWLR PT. 113, SC, 1 AT 17 para – C.
In the light of the above, for the respondent to have a right to claim the property in dispute either for himself alone, or as property of his own father without reckoning that it is a family property of the Idi-lgis which 1st DW1 claimed owned it out of 12 Idi-lgis that comprises of the Kuforiji family council, he needed to apply to Court for an order of partition. See OGUNMEFUN v. OGUNMEFUN 10 NLR 8 at 83, followed by this Court per AGBAJE, JSC in NZEKWU V NZEKWU (1989) 2 NWLR PT. 104 SC, 373 at 406 paras- F-H where His Lordship held that the right to partition or live on family land are two distinct rights.

The respondent’s counter-claim is a separate action from appellant’s claim and it is irrelevant that respondent was sued by appellant in his personal capacity and so respondent must stand or fall in his counter-claim by the case he pleaded therein. Nothing stopped the respondent from counter claiming in a representative capacity for the alleged Idi-lgis that owned the property in the Animawun Kuforiji family as put across by DW1’s, witness for respondent. Clearly, the respondent had no locus standi to institute the counter-claim.

On the matter concerning laches and acquiescence relating to the respondent sleeping on his purported right.

From the evidence of DW1, it is obvious that Respondent was aware of the sale to the Appellant’s late Uncle during the meeting of 16th and 17th September, 1979 in the presence of the family members. It is therefore incontestable that the respondent had been aware of the sale of the land in dispute since 1979 (six years after the execution of EXHIBIT “D”) but deliberately refused to take any action in respect of the land until sometime in 1992, 19 years after the appellant moved into possession and never sought judicial redress until 1st August, 1997.

The main thrust of argument by Appellant on this issue is that having been in possession of the land since 1977 at the death of Rev. Ayorinde until sometime in 1992 the Respondent came up to the take the land, this amounted to the Respondent’s sleeping on his right for too long and that he is guilty of laches and acquiescence. That the Respondent should be stopped from claiming the land from Appellant. More so that a person can in law be in possession of land through a third part. In his reply, learned counsel for the respondent submitted that the issue on this point formerly in issue No. 3 does not flow from any of the grounds of appeal filed and as such should be discountenanced. That only issue relating to the ratio of the Supreme Court in Idundun V. Okumagba … and relevant in ground No. 3 and any issue formulated which has no bearing, should be discountenanced.

On possession, he submitted that acts of possession do not constitute and cannot substitute for root of title. Also, that acts of possession alone cannot be proof of title. Also that acts of possession alone cannot be proof of ownership where production of document of title such as EXHIBIT D is relied upon.

It is not in dispute that Appellant had been in occupation of the land for the upwards of 24 years adverse to the title, asserted by Respondent. See EXHIBITS “C” and “D”. He also, in the course of his occupation built it up expending in the process, huge resources in the belief of having acquired a beneficial interest in the land by virtue of his late Uncle’s freehold title.

The Respondent knew of these facts since 1979 but waited until all the parties that could contest his counter-claim to the land had died, including his own uncle who executed the deed of conveyance of the property to Rev. Ayorinde along with his cousin. Then came 1st August 1997, respondent filed a counter-claim against appellant for possession. In so doing, he placed reliance on a deed of lease of 1954- EXHIBIT “B” which he knew of as far back as 1979 to have been surrendered to Rev. Ayorinde in 1973 and also that the lessees under EXHIBIT “B” by the surrender confirmed that their lease had been extinguished.

The law, is that a person in the position of Respondent will not be allowed to force back the hand of the clock belatedly; having made the Appellant change his position and expended monies relying on the uncalled EXHIBIT “D”, it was too late in the day for Respondent to suddenly wake in a fit of contrived belated awareness in 1997 to claim the land. See BOSAH v OJI (2002) 6 NWLR PT. 762 SC, 137 at 158.
In that case under similar circumstances of laches it was held that equity is created in favour of the Appellant and that where a person has expended money on land of another in the expectation, induced and encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity is created, such that the Court would protect his occupation. See also ADEKILEKUN’S case and ELABANJO’S cases supra)
The case of IDUNDUN v OKUMAGBA is not illustrative of the defence which may be set up to defeat a title in any of the five ways recognized by that authority. What the appellant urged upon the lower Court was about “misdirection” in the application of the ratio of that case. Although, a party may have proved his title in any of the five ways identified in IDUNDUN, he could still fail if the defendant makes out an unanswerable defence such as laches and acquiescence, limitation or extinguishment. Once those defences are established, it is immaterial that the counter-claimant has established his title to the land as he would still fail as the situation on ground portrays. It becomes too late for the Kuforiji family to complain.
See the case of (31) ADEDEJI V OLOSO (2007) 5 NWLR (PART 1026) PP. 172-173, PARAS E-B. Where this Honourable Court held as follows:
“…Occupation of land for a long time may operate to oust the title of the real owner has been guilty of laches and acquiescence. However, acquiescence may not bear a claim unless certain conditions are fulfilled:
a. Adverse possession by the person in occupation, that is, a possession inconsistent with that of the owner.
b. The possession must have lasted for a long time;
c. The real owner must have been guilty of acquiescence Or laches whereupon the person who relied on it must have altered his position.” (EMPHASIS MINE)
Premised on the above, the respondent having slept on his right for 19 good years, would be estopped after waking up from his slumber from reaping where he did not sow.
The decision of the lower Court on this issue has occasioned a miscarriage of justice. Having so wrongly decided, the lower Court did not examine whether the appellant proved the defence. Whereas the appellant pleaded, gave evidence and canvassed in his final address at the trial Court his acts of long possession and enjoyment of the land in dispute without interference from the respondent or anyone whatsoever, over a period of well over 20 (twenty) years and argued same in his brief at the Court of Appeal.
In the context of the defence, it is evident that IDUNDUN v. OKUMAGBA which the lower Court misapplied, at page 454 lines 50-40 supports the view that “acts of long possession and enjoyment of land may also be prima facie evidence of ownership of the particular land and serve as weapon of defence in a declaration of title to land distinct from a claim for trespass.”
That decision of the Court below cannot stand in the light of the undisputed evidence on the record as to the various improvements and developments appellant caused to be constructed on the land in dispute during the stated period and further evidence before the trial Court and the Appellant’s discountenanced arguments in his brief at the Court of Appeal that he had been residing in the land in dispute since 1973, and also runs poultry thereon.
The respondent even admitted being aware of the transaction which culminated in Exhibits C and D as far as 1979 and did not take any steps to challenge same until appellant sued the respondent for trespass committed by him in 1996. Therefore the Court below ought not to have discountenanced the defence of laches and acquiescence set up at the trial Court.

On whether the appellant proved a better title to the land in dispute as against the respondent.

The case in the lower Court touched on competing claims of appellant and respondent to title and possession of the land in dispute.

While respondent predicated his claim on being a lessor to Baptist Mission in terms of EXHIBIT B the appellant claimed beneficial interest in the fee simple vested in Rev. Ayorinde by the combined effect of EXHIBITS “C” and “D” in 1973 and 1974 respectively. This ripened to a right to apply for statutory right of occupancy upon the promulgation of the Land Use Act in 1978. EXHIBIT “C” is the deed of surrender by the lessee under EXHIBIT “B” to Rev. Ayorinde on the strength of his grant from the Kuforiji family as per EXHIBIT “D”.

Apart from the documentary EXHIBITS, it is also not in dispute that Appellant was in possession hence respondent sought possession. The appellant sought injunction to restrain the respondents actual and continue threat of trespass. Respondent was thus fixed with a heavy burden. See ADEDEJI V OLOSO (2007) PT 1026 SC, 133 AT 172.
In the Supreme Court case of ADEDEJI; in the lead judgment per OGUNTADE JSC, following THOMAS V PRESTON HOLDER (1946) 12 WACA 78 held that the proof of title to displace that of a party who established root for his own title and is in possession must be substantiated.

Secondly, the respondent was asserting that appellant was a tenant on the land or that he was claiming under the title of a tenant on the land. This is a serious claim that is not lightly proved. In DADA V BANKOLE (2008) 5 NWLR PT. 1079 SC 26 AT 53 it was held that in a claim for title to land where the plaintiff claims that the defendant is his customary tenant on a piece of land and the defendant also claimed to own the land, the question before the Court is whether the defendant’s possession was with the plaintiff’s permission and so it is for the plaintiff to show that he put the defendant on the land.

Respondent tendered EXHIBIT “K”, “K1”, “K2, “K3”, and “L” all directed at showing that he issued notices of breach of covenant on the deed of lease contained in Exhibit “B”. All those notices were issued form 1992 upward.

For a fact, the Respondent was misconceived to insist on recovering possession from Baptist Mission that was not in occupation as he did in EXHIBIT “K”–“K3”.

It follows that it was always going to be an impossible hurdle for Respondent to succeed on the basis of his claim. He ought to have sought to set aside or void EXHIBITS “C” and “D” on ground of fraud, mistake, misrepresentation etc, instead of pretending that Appellant was his tenant in that Appellant, deriving his title from Respondent’s supposed tenant; whereas appellant derived his root of title from respondent’s family. See EXHIBIT “C” and “D”. See …

The Respondent in his bid to establish a better title, set up a variety of inconsistent roots of title which did not go back as far as the Kuforiji family to whom it is accepted that the land originally belonged. The plain truth is that a claimant in the position of respondent with ambivalent and contradictory roots of title cannot succeed as against appellant.
In a similar scenario to those present in this case on appeal, where a claimant to title over a land was found to have pressed several ambiguous bases of title, the Supreme Court had held that the case was bound to fall. See (24) ATUANYA V. ONYEJEKWE (1975) NSCC VOLä 9, PAGE 89 at 91; Mogaji V. Cadbury Nig. Ltd (1985) 2 NWLR PT. 7 P. 393 SC (Supra)
The Court held in ATUANYA’s case that the claim was not free from ambiguity:
“In paragraphs 3 of the statement of defence as set out above, she claimed to be the absolute owner of the disputed land on the ground that she is a purchaser for value at the same time, she claims in paragraph 3A of the said statement of defence and also in her evidence that the land in dispute is made up of three plots, one of which was given to her by the late Udenba Atuanya in his lifetime in appreciation of the invaluable services which she alleged that she rendered to him during his illness, when as she claims, the other members of the family could not careless she claimed the late Udemba Atuanya constituted her a trustee for sale and that the money realized from the sale would be sued for his funeral purposes, and also for the benefit of his younger children two should survive him…. But this allegation was not, in any way, substantiated at the trial. Indeed, no such document was ever produced in the Court below.”
What is evident is that whereas appellant was straight and unconvoluted, the respondent failed to establish his claim that the land was vested in him alone, and was not a property of the Kuforiji family of which he was a member. No evidence of partition was given. The only evidence relied upon were minutes of the meeting which arose after the conveyance to Rev. Ayorinde and after his death. A party is only bound by a document executed by him, with his approval, or on his behalf even if the document is for his benefit, he is not bound by it unless he adopts it. In this case, the makers of EXHIBIT “F” (minutes of Kuforiji family council meeting held on 16th, 17th September 1979) were not called and the appellant was not party to the meeting not being a member of the family.
What is more, the grantor to Appellant who (according to Respondent) reportedly denied executing the deed of conveyance, had all died by 1997 when the respondent sought to assert a belated right to the land. Even if the evidence of both parties was unsatisfactory, the Court must still determine who had a right to the land between them on sound legal basis. See TINUBU V KHALIL & DIBBO TRANS LTD (2001) 11 NWLR PT. 577 SC 171 at 182-183 where the Supreme Court held that in an action where both parties claimed title,
“In the absence of a valid title the Respondent may still succeed in maintaining an action for trespass because the law is that even if a plaintiff is a trespasser, he can maintain an action against a later trespasser for damages and injunction… This is why a plaintiff who fails to prove title will not necessarily fail in his action in trespass. If he establish by evidence acts of possession, his claim for damages for trespass and an order of injunction may be granted” per UWAIFO JSC at 183 paras. B-C.
Following the Tinubu’s case, the lower Court should have found for the appellant who was in possession with the presumption upon him that ownership enured in his favour, along with his siblings which presumption the respondent had not rebutted. See Section 143 of the Evidence Act; Iledare v Ajagbonna (1997) 6 NWLR (pt. 507) 1 at 9.
Furthermore, the recital of the title document which appellant relied upon states that the land belonged to Kuforiji Family contrary to the contention of Respondent that it vested in his father, and form his father upon him by jus accrescendi. The contention of the respondent is untenable in law and that the lower Court was in error to have upheld the contention as to jus accrescendi. It follows that no evidence was led to effectively rebut the presumption in the recital to EXHIBITS ‘C’ and ‘D’. One huge gap in the respondent’s case that cannot escape attention is the root of title claimed by him.
If the land was not part of Kuforiji family land (as contended for respondent despite the recital to that effect in EXHIBIT “C” and “D”), how did the three grantors who executed the original deed of lease EXHIBIT “B” come about their so-called joint interest in the land? Neither in respondent’s pleadings nor in his evidence of that of his witness was this explained.
Facts in a recital if not challenged and effectively rebutted are conclusive proof of what it states. See ASHIRU v. OLUKOYA (2006) 11 NWLR PT. 990, SC, 22 paras. B-E. Given the above presentation and coupled with the defence to the Respondent, the appellant proved better title regardless of the seeming defect in his title. The lower Court should have reversed the judgment of the trial Court against appellant and found for him as against respondent.

See KAREEM v OGUNDE (1972) NSCC 66 in which case the Appeal Court held that where both parties to a suit for declaration of title to land have defective titles, the Court has a duty to uphold the claim of the party with a better title.

Since their lordships in the Court below held that the due execution of the appellant’s title document was not in question (a fact conceded by Respondent’s counsel in his brief at the Court of Appeal at page 144 of the record), the combined effect of all that has been said under this issue herein is that the documents tendered as evidence of title never led any admissible or credible evidence to destroy the legal validity of EXHIBITX “D”.

The only direct documentary evidence by Respondent to disprove same was EXHIBIT “F”. It must be borne in mind that Respondent was in effect stating by EXHIBIT “K”–“K3” that appellant had been divested of his title by a notice of forfeiture. Without a locus standi, as we have stated under issue “1”, Respondent never succeeded to the position of landlord under EXHIBIT “B” failure to respond to establish his status as landlord to appellant ought, therefore, to be fatal to that connection in the fact of EXHIBIT “C” — the deed of surrender to appellant’s late Uncle which was neither challenged nor sought to set aside in the respondent’s counter-claim. The burden assumed by respondent was thus onerous; but it was never discharged. See Adole v Gwar (2008) 11 NWLR (pt. 1099) 562 at 603-604.

An analysis of Exhibit C, D, B & F would show that the vendors in Exhibit D were not strangers at all and had the capacity to convey the land to Rev. Dr. J.T. Ayorinde.

From EXHIBIT “B” Deed of Lease in favour of the Baptist Mission, the 1st signatory of the first part to the EXHIBIT was Chief Samuel Abraham Kuforiji

Chief Simeon Olujimi Kuforiji, the 2nd signatory of the 1st part to EXHIBIT “D” i.e. Deed of Conveyance to Late Rev. Dr. J.T. Ayorinde, is the eldest son of Chief Samuel Abraham Kuforiji, one of the 3 brothers claimed by respondents to be the owners of the land in dispute.

If Chief Samuel Abraham Kuforiji was not a stranger as one of the signatories in EXHIBIT “B” in respect of the land in dispute, which the family also acknowledged, then his eldest son, Chief Simeon Olujimi Kuforiji can definitely not be a stranger in relation to EXHIBIT “D” which he signed as one of the signatories in respect of the same land in dispute. Suffice it to say that the sale in EXHIBIT “D” was duly executed by a family member who has a locus standi and capacity.

Moreover, the Vendors in EXHIBIT “D” did not sell in their private capacity rather they sold on behalf of themselves and the Kuforiji family and the fact that one of the Vendors in EXHIBIT “D” is the eldest son of one of the Vendors in EXHIBIT “B” is enough to prove that the said vendors in EXHIBIT “D” can never be strangers to the land in dispute as purportedly claimed by the respondent.

Also to be noted is that EXHIBITs “D”-“C” were duly stamped and registered. There was no single evidence before the two lower Courts tending to show fraud in EXHIBIT “D”, rather, the only evidence before the lower Court which the Respondent strongly relied on in establishing their purported defence and counter-claim; was the oral evidence of DW1 and DW2 respectively which varied the contents of EXHIBIT “D” and “C”; evidence of which the Learned Justices of the Court of Appeal relied on in this issue in favour of the Respondent at page 187 of the record.

A perusal of DW1’s statement would suffice to show the error of the Court below when they held that Kuforiji family was not the owner of the land. DW1 had this to say:
“…The position of the sale of land in dispute to Rev. Ayorinde was an issue in the family council. My uncle Jonathan Kuforiji denied any knowledge of the sale of land to Dr. Rev. J. T. Ayorinde, My cousin Olujimi Kuforiji said he did not receive any penny from anybody in respect of the land in dispute …”

It is worth noting that EXHIBIT “C” and “D” were certified true copies of public documents. They were tendered by Registrar of land upon subpoena by the trial Court. They thus require no foundation to be presumed genuine leaving the Respondent with the burden of displacing the burden.

Having been properly and legally admitted, without any iota of challenge, the Court below ought to have taken them into consideration and consider the submission of the appellant’s counsel. In this case, appellant complained to the Court below about wrong evaluation of EXHIBIT “C” and “D” by the trial Court. It was incumbent on the Court of Appeal to properly re- evaluate the said evidence. See ADENLE V OLUDE (2002) 18 NWLR (PT. 99) 413 AT PP. 431-432 where it was held per Uwaifo, JSC as follows: “a Court must take all relevant evidence before it into account in the resolution of the questions arising from the case it has to decide.”

The second vendor in Exhibit D, Olujimi Kuforiji, DW1 stated that the former did not receive a penny from anybody. That is not enough to exonerate the former as privy to Exhibit D because the former did not deny executing Exhibit D but also he said was that he received no payment.

Of note is that oral evidence is not admissible to vary or contradict written documents. Especially a document that has been in existence for 20 years or more, as in the case of EXHIBIT “D”, the same argument goes for EXHIBIT “C” the deed of surrender which was prepared by the lessees in EXHIBIT “B” which recited that the land belonged to Kuforiji family. A recital of 20 years old is presumed correct. The application is that the lessees must have been represented to in 1954 that they were leasing from Kuforiji family and not from the signatories a joint tenant to the exclusion of the other family members. See Section 162 of the Evidence Act, Cap 112, LFN, 2011

The learned Justices of the Court of Appeal while upholding the judgment of the learned trial Judge to the effect that the vendors in EXHIBIT “D” has nothing to convey having regard to the minutes contained in EXHIBIT “F”, held at page 187 of the records as follows:
“… in EXHIBIT “F” which is the minutes of the Kuforiji Family Council, it is clearly stated at a meeting held between 16/9/79 and 17/9/79 that the land in dispute belongs to the three brothers already stated. Therefore, any purported sale of the land by the council would be null and void… “

EXHIBIT “F” was a minute book generated in-house by Respondent and his family members to be used as evidence that Kuforiji family had no interest in the land in dispute and thus advising Respondent to sue. Clearly this is a statement made by a party interested at a time when litigation was anticipated and made to maintain the case- as Respondent eventually did. By virtue of Section 91(3) of the Evidence Act, such document is absolutely inadmissible. See UGWU v. ARARUME (2007) 12 NWLR PT. 1048 SC, 367 at 453;
This minute book, Exhibit F cannot vary Exhibit D neither can it convey or transfer nor create any legal interest is or over the land in dispute.

Under the doctrine of feeding the estoppels, the contention of respondent to the contrary after 23 years will not avail him. Worse still he did not apply to set aside the conveyance and deed of surrender but merely sought re-entry on the basis of lease that had been extinguished. Clearly, the respondent was misguided in his choice of reliefs; he did not seek or prove the relief that was apposite to his case. See (43) DABO V ABDULLAHI (2005) 7 NWLR PT. P23, SC, AT, 204-205.
In DABO’s case the Supreme Court restated its earlier position that “there may be circumstances in which there are facts which, if established by the evidence may justify the exercise of the Courts discretion to set aside a grant of right of occupancy. A party cannot however, rely on such facts as justification for entering on land subject of the grant subsisted and had not been set aside.”

In this case, the origin of the claim of respondent to exclusive title to the land is EXHIBIT “B”. But that deed shows the capacity of nature of interest vested in the three signatories. There is nothing in EXHIBIT “B” to show the nature or root of title held by the lessors in the land.

EXHIBIT “B” only stated that the signatories acted as the lessors and that the three of them namely S.A. Kuforiji, H.F.A. Kuforiji and H.C.O Kuforiji, granted the lease with the consent and approval of Oba Ademola II, Oba Adedamola II; Oba B.B. Sabekun, Agwa and Oba Gbadela, Olowu being members of the Egba native authority council empowered by the native law and custom to act on behalf of the Egba Community Abeokuta Province granted a lease for a term of 99 years of the Baptist Mission.

The lower Court held thus:
“…He was able to show that the vendors in EXHIBIT “D” were strangers to the land and as such had no capacity to convey the land to Rev. Dr. J. T. Ayorinde (ITALICS OURS)
This is not reconcilable with the findings of the lower Court that “…Appellant in this case had pleaded and traced his root of title to EXHIBITs “C” and “D” which conveyed the land in dispute to Rev, J. T. Ayorinde.”

There was no evidence of such showing made out, considering the contradictory facts and evidence relied upon by respondent. Their lordships were therefore in error to conclude as they did but proceeded to hold that “…the root of title of Rev. Ayorinde is void by virtue of the fact that the vendors had no capacity to convey the property to him”.

It must be noted that respondent knew that appellant’s title was vested in 1973 by EXHIBIT “D”. Instead of challenging the conveyance, he proceeded only in 1997 to, found a claim on purported lease that was surrendered to appellant vide his uncle in 1974. If appellant was a stranger in adverse possession since 1974, to the knowledge of respondent, it was too late in 1997 to seek to recover possession from the appellant in the basis of a lease that had expiated and had been surrendered to the so-called stranger, 23 years earlier.

I have no hesitation in finding that the appellant’s claim of title was stronger than that of the respondent. The Court of Appeal was in error in their lordships’ decision that appellant did not prove a better title to the land in dispute as against Respondent; notwithstanding the probative value of EXHIBITS “B”, “C” and “D” tendered by Appellant vis-a-vis the ipse dixit of Respondents and his witnesses to the contrary and thus upheld the counter-claim of the Respondent.

The facts as now reviewed definitely justify the intervention of the Supreme Court to interfere with the concurrent finding of the Courts below on the question of who between appellant and respondent proved better title. Their lordships in the lower Court came to a perverse conclusion in the face of all that has now been exposed on the printed record. See AKINPELU V. ADEGBORE (2008) 10 NWLR PT. 1096 SC 531 AT 559 – 560.
At this juncture, I see no other way around the situation that the concurrent findings and decisions of the two Courts below were reached through wrong application of the law and perverse thereby leaving a miscarriage of justice, occasioned the appellant hence the need for the intervention by this Court to give the redress.

The appeal is meritorious and I allow it. The counter claim is non-suited and struck out.
I abide by the consequential orders made in the appeal.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Ejembi Eko, JSC, just delivered. He has comprehensively and very ably resolved all the issues in contention in this appeal. I agree entirely with the sound reasoning and conclusions reached therein. I have nothing useful to add that would not be repetitive. I also dismiss the counter-claim and set aside the judgment of the lower Court, which affirmed the judgment of the trial Court,

I abide by the awards of N100,000.00 damages for the destruction of the appellant’s properties on the land in dispute and N100,000.00 damages for trespass against the defendant/respondent and in favour of the appellant. I further endorse the order of injunction restraining the defendant/respondent, his servants, agents, assigns and/or privies from continuing any further trespass on the piece or parcel of land covered by Exhibit A, for the duration of the term created by Exhibits B and C.
Costs of N2,000,000.00 is awarded in favour of the appellant against the respondent.
Appeal allowed.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the lead judgment written by my learned brother Ejembi Eko, JSC, in this appeal, I find myself in total agreement with all the views expressed on the crucial issues that call for decision by the Court and the conclusions reached thereon. His Lordship has comprehensively considered the issues in such a manner that has “covered all the field” on the facts and material principles of law applicable to them, thereby leaving little, if any, useful points to be added.

Just for emphasis and support, I would like to say that both lower Courts took their “eyes off the ball” on the issue of the appellant’s locus standi to institute the action against the respondent as the person who had been in lawful physical possession of the property from the year 1974, when by Exhibit “C”, the Board of the Baptist Convention surrendered the un-expired term of the lease from the trio of the Kuforiji brothers to Rev. (Dr) J. T. Ayorinde; the appellant’s uncle, and from 1977 when Rev. (Dr.) Ayorinde died intestate as well from 1996 when the wife died, also intestate, leaving the Appellant in actual exclusive possession. From the undisputed facts in the Appellant’s pleadings, he did show sufficient interests vesting him with requisite locus standi to approach the Court for the remedies sought against the Respondent. See Imona-Russel v. Niger Constr. Ltd. (1987) 3 NWLR (pt. 60) 298, Okolo v. Dakolo (2006) 14 NWLR (pt. 1000) 401, Adepoju v. Oke (1999) 3 NWLR (pt. 594) 154, Oyadare v. Keji (2005) 7 NWLR (pt. 925) 571 .

For all the reasons adumbrated in the lead judgment which I adopt, I join in allowing the appeal in the terms set out therein.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having read, before now, the judgment delivered by my learned brother the Hon. Justice Ejembi Eko, JSC, I concur with the reasoning reached therein, to the conclusive effect that the present appeal is grossly meritorious.

Hence, having adopted the said reasoning and conclusion as mine, I too hereby allow the appeal and abide by the consequential orders made therein.

Appearances:

Chief Bankole Falade, with him, J. M. Nwadibia, Esq. For Appellant(s)

Oluseye Chuwkura, Esq., with him, F. K. Oyebamji, Esq. For Respondent(s)

LawCare Nigeria

laweditor

YOU MAY HAVE MISSED

NIGERIA DATA PROTECTION ACT, 2023

NIGERIA CUSTOMS SERVICE ACT, 2023

NATIONAL SPORTS COMMISSION ACT, 2023

NATIONAL SENIOR SECONDARY EDUCATION COMMISSION ACT, 2023

laweditor

Related Story

YOU MAY HAVE MISSED