Supreme Court throws out Apena family’s claim to Mushin Land

For failing to lead evidence to prove the origin of their claim to Ojuwoye community in Mushin Local Government of Lagos State, the Supreme Court of Nigeria has rejected the argument by the Apena family of Lagos to own a large parcel of land in Lagos State.

The case decided few months ago, brought to an end the age-long rancor that had existed between the Apena family represented by Ramonu and Jimoh against representatives of Ojuwoye community, Oba Fatai Aileru and Alhaji Shittu Bakare.

It was a unanimous judgment of the apex’s court, when Justice John Okoro said: “The failure to lead evidence to prove the origin of the appellants’ Ojuwoye community is the bane of their case. The appellants must admit that they lost this case on the pleadings and there is nothing that can be done at this stage.”

This is an appeal against the judgment of the Court of Appeal, Lagos, wherein the lower court set aside the judgment of the trial High Court and entered judgment for the present respondents.

Dissatisfied with the decision of the Court of Appeal setting aside the judgment they won, the appellants have appealed to this court. A synopsis of the facts will suffice.

The respondents were the plaintiffs in suit No. LD/1727/88 at the Lagos State High Court and claimed against the first appellant, as first defendant:

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

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

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

The respondents also filed a similar claim against the second appellant who is the brother of the first appellant.

The second suit number was LD/1728/88. At the trial, both parties and the court agreed that the judgment In LD/1727/88 should bind the parties in suit No. LD/1728/88.

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

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

At the High Court, the trial judge entered judgment for the defendants, now appellants. The plaintiffs, (now respondents), not being satisfied with the judgment, appealed to the Court of Appeal, which set aside the decision of the trial court and entered judgment for the plaintiffs/respondents.

The appellants were dissatisfied and appealed to the apex’s court, raising six grounds of appeal out of which four issues were distilled. The four issues are whether it can be adjudged as the Court of Appeal so decided, that Aileru and Odu Abore families, and both families alone, constitute the Ojuwoye community, to the exclusion of all other families in Ojuwoye, in view of the Supreme Court judgments.

Also to be determined was whether from the totality of the evidence canvassed by the appellants, the Court of Appeal was right in assuming and concluding that the appellants derived their title from another “Ojuwoye community”, which was not the same with the respondents’ Ojuwoye community who were the descendants of Aileru and Odu Abore families when both the appellants and respondents relied on the plan tendered as exhibit “A” in suit No. 127 of 1944, confirmed and reinforced in consolidated suit Nos. 113 and 114/50. Did this assumption result in a miscarriage of justice?

Others are whether the appellants from the oral and documentary evidence adduced at the trial are members of the Ojuwoye community to justify their occupation and possession of the land in dispute and whether the respondents, who were plaintiffs in this suit, discharged the burden of proof placed on them in establishing that the appellants (defendants) were “trespassers” and not “allottees” to justify the claim in trespass, and injunction granted to them by the appellate court, in reversing the judgment of the High Court.”

It is however the view of the respondents, that two issues are relevant for the determination of this appeal. The two issues as formulated by their counsel are as follows: whether the Court of Appeal was right when they held that the plaintiffs/respondents were entitled to succeed on their claim for damages for trespass and injunction.

They also wanted to know whether the Court of Appeal was right when they held that the defendants/appellants failed to lead any evidence, as to the composition of his own Ojuwoye community and the source of title of the said Ojuwoye community in dispute.” I intend to be guided by the issues formulated by the appellants.

Reviewing the submission, Justice Okoro said that, in a civil case, the claim of the plaintiff is won and lost first on the pleadings and secondly on the evidence led in support of averments in the statement of claim.

Equally, he held that the defence of the defendant is based on the facts averred in his statement of defence and evidence in support thereof, adding that, the purpose of pleading was to give the other side at the earliest opportunity, the case the other side is to meet. It is important to state further that there cannot be a better notice of the case a party intends to make than his pleadings.

“It is a notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. I need to emphasize also that evidence led at the trial, which is at variance with the pleadings goes to no issue and must be rejected or discountenanced.

“The sum total of all I have been saying above is that the appellants have failed to show why this court should upturn the judgment of the Court of Appeal in this matter. Accordingly, this appeal is devoid of merit and is hereby dismissed. I affirm the judgment of the Court of Appeal. I award costs of N100,000.00 in favor of the respondents.”

This story originally appeared on Guardian news