This is an appeal from the decision of the Court of Appeal, Lagos Division. The Plaintiffs, on 6th December, 1988, took out a Writ of Summons in the Lagos High Court with a claim against the Defendants for the following reliefs:
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The Plaintiffs claims against the Defendants jointly and or severally are for (1) N10,000.00 aggravated damages for trespass on all that piece or parcel of land known as "Ojuegun" situate lying and being at Ajah Ile Town in Eti-Osa Local Government Area which said land is customarily used for ancestral burials and festival purposes.
PARTICULARS
Destructions of ancestral graves and/humiliation and mental anguish and stress resulting from same .......... N10,000.00.
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Injunction restraining the Defendants by themselves their privies and or their servants or agents or the use from remaining on or going to carrying on building operations or continuing in occupation of piece or parcel of lands.
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Further or other relief."
The case was filed before Mrs. Akinboboye J, and after all the preliminaries which included settling and amendment of pleadings the trial commenced on 22nd November, 1989. A witness. Solace Salawu Olatunde Abereoje, gave evidence for the Plaintiffs, At the conclusion of his testimony the Court adjourned to 2nd March, 1990 for further hearing. The hearing did not go on because the parties agreed to a term of settlement which the court would enrol as a consent judgment.
The consent judgment was enrolled on the 4th of March, 1991.
In June 1993 the Defendants filed a motion seeking for the following orders:
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An order setting aside the consent judgment entered by this court on 4th March, 1991.
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An order for rectification of the said judgment as per the terms of the settlement dated 12th February. 1991.
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A stay of execution of the judgment of this court entered on 4th March, 1991 pending the ruling."
The learned trial Judge, on 16th December, 1994, delivered a ruling in which she refused to set aside the consent judgment and also declined to grant an order for stay of execution of the said judgment. Now, the Appellant, Rev. Olatunde Ayotunde Alase, emerged. He went to the Court of Appeal on 6th March, 1995 and filed the following motion:
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"TAKE NOTICE that this Honourable Court will be moved on ....... day of .......... 1995 at about 9'clock in the forenoon or so soon thereafter as Counsel may be heard for and on behalf of the Applicant for the following orders:
The facts in brief, are as follows: the land in dispute formerly formed part of the land owned by one Aige, a Yoruba man and native of or an indigene of Ikorodu, Lagos State under customary law or native law and custom. On his death intestate, the property devolved on his children as family property. At some time later, the family decided to partition the family property at Aige family and allotted the land in dispute to one of the descendants of Aige by name Chief T.K. Dada. After his death, the family conveyed by deed of grant the said parcel of land to:
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an order for extension of time within which to apply for leave to appeal as a person having an interest in the subject of this Suit.
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An order for leave to appeal against the consent judgement delivered on the 4th day of March 1991.
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An order for extension of time to file Notice of Appeal.
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Such further or other orders as this Honourable Court may deem fit in the circumstances. Dated this 6th day of March, 1995"
The Court of Appeal, in a considered ruling found no merit in the application and dismissed it with costs.
Dissatisfied, an appeal was launched.
The plaintiffs sued in a representative capacity for themselves and on behalf of the entire members of Oturadewun Tefojukan, Kutimoju Dada branch of Aige family.
The learned trial Judge held that there was no evidence of relationship of the 2nd and 3rd plaintiff with Chief T.K. Dada. He found that the 1st plaintiff is the son of one Efuneye, one of the grantees.
The plaintiffs/respondents predicated their claim on Exhibit A and from the content of Exhibit A, the parcel of land granted was to the named grantees. Their heirs and assigns in fee simple. It was not to the grantees for themselves and the entire members of Chief T.K. Dada's branch of Aige family. The learned trial Judge therefore dismissed the claim. The plaintiffs then appealed to the Court of Appeal and succeeded.
