Mrs. Abiola Oredien V. Anthony Okafor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the leading Judgment)

This appeal is against the Judgment of the Lagos State High Court Ikeja Division delivered by Lawal Akapo J. on the 29th day of June, 2012 in Suit No. ID/476/2004. The Claimant at the Court below now Respondent in this appeal commenced action against the Appellant as defendant on the 30th day of March 2004. The Claimant now defendant sought for the following against the Defendant/Appellant:

1. A declaration that the plaintiff is entitled to right of occupancy over a piece or parcel of land lying or situate at Ojo Orisadeko Asalu Elemo Family land, Ajao Estate in Oshodi/Isolo Area of Lagos State of Nigeria, containing an area of approximately 1,345,899 Sq. metres and more particularly delineated and shown verged Red on survey plan No. ESL/262/92 annexed to and covered by certificate of occupancy No. 7/71993C of 21/5/93 covering the said land.
2. N2,000,000.00 (Two Million Naira) general and special damages for trespass into the said land.
3. Perpetual injunction restraining the defendant by herself, agent?s privies or assigns from further entry into the said land.

?The

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Defendant filed defense and counter claim, seeking for a declaration that she is also entitled to the certificate of statutory right of occupancy over the same piece of land the subject matter of litigation between the parties. Upon the completion of filing and exchange of pleadings, trial commenced wherein the Claimant/Respondent called four witnesses while the Defendant/Appellant in the instant appeal called two witnesses, both parties tendered various exhibits at the trial. Judgment was eventually delivered by the lower Court against the Defendant/Counter claimant who is now the Appellant in this appeal. The Defendant/Appellant became aggrieved by the decision of the lower Court and therefore brought this appeal. The Notice of appeal filed on the 27th day of July 2012 contains seven grounds of appeal and is at pages 263-266 of the record of appeal, the ground of appeal less their respective particulars are also set out as follows:

1. That the learned trial judge erred in Law when the judge held that the Defendant/counter claimant did not give evidence of irregular procurement or impropriety in the grant of the Certificate of Occupancy Exhibit P9

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despite the provision of Section 34 (5) (a) of the Land Use Act which provide for deemed grant of the Defendant/Counter Claimant as a customary title holder.

2. The learned trial judge erred in Law when he held that the evidence of the Claimant was direct, pungent, unequivocal and straightforward and consistent with that of the 1st-3rd PW.
3. The Learned trial judge erred in Law when he failed to appreciate the totality of the Supreme Court decision in ATANDA v. AJANI (1999) 3 NWLR (Pt. 111) page 511 on priority of title derived from common grantor.
4. The Learned trial judge erred in law when he held that the Defendant/Counter Claimant withheld evidence of occupation by mechanics and possession for eleven (11) years and that the Defendant witness (DW1) also failed to produce a deed of lease in favour of the Defendant/Counter Claimant.
5. The Learned trial judge erred in Law when he failed to properly evaluate the entire evidence adduced before the Honorable Court by parties and witnesses.
6. The Learned trial judge erred in law when he failed to appreciate the requirements of Customary Land Law when he held that the Defendant/counter

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claimant has no deed of lease on the plot of Land in dispute.

7. The Learned Trial Judge misdirected himself in Law when he failed to appreciate that the claimant is to succeed on the strength of his own case and not the weakness of the defense.

The Appellant through learned Counsel Odesanya filed Appellants Brief of Argument on the 17th day of February 2015 and Appellant’s reply on the 5th day of June 2015. The Respondent through learned Counsel Ibezim Udeji filed the Respondent’s Brief of Argument on 4th day of May 2015.

The Appellant through learned Counsel nominated five issues for determination. I now reproduce the issues as follows;

1. Whether the Appellant as a customary title holder has protection of Section 34 (5) (a) of the Land Use Act upon evidence of purchase of the plot of land in dispute via purchase receipt dated 26th July, 1976 (Exhibit D2) (distilled from Ground 1 of the Notice of Appeal).
2. Whether the evidence of P1 to P3 can be said to be credible, reliable and consistent (distilled from Ground 2 of the Notice of Appeal).
3. Whether the Appellant who first derived title from the common grantor enjoy

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priority over the Respondent (distilled from Grounds 3 and 4 of the Notice of Appeal).

4. Whether the Appellant must call a host of witness in proof of her case at trial (distilled from Ground 7 of the Notice of Appeal).
5. Whether with the failure of the trial judge to consider the totality of evidence adduced in the proceeding to make finding of facts this Court an interfere with such findings and make proper inference from the evidence available (distilled from Grounds s and 6 of the Notice of Appeal).

On the part of the Respondent, learned Counsel Udeji adopted the issues formulated by the Appellant as Respondent’s issues, he reproduced the same issues in the Respondents brief of argument, I will also reproduce the issues even though they are the same, but just to keep the records straight, Respondent’s adopted issues therefore read as follows: