Anor in the Court of Appeal of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A.

This appeal is against the judgment of the Lagos State High Court delivered on the 21st day of January, 2011 by HON. JUSTICE L. A. OKUNNU wherein the claim was dismissed in its entirety. The original claimant was substituted by the present Appellant in the course of the proceedings.

The Appellant took out a writ of Summons against the Respondents claiming the following:
1. A declaration that the claimant is the person entitled to the statutory Right of occupancy in respect of all the pieces of land with the building on it known as No.1 Moyo Agoro Street, Ifako and more particularly delineated on survey plan NO.LAT/1002/76 dated 28/10/76 and particularly identified on Plan NO. AD/6/2003 dated 14/4/2003 drawn by M. A. ADEOTI licensed surveyor.
2. An order of Court compelling the 1st defendant to give up possession forthwith and render account of the money collected on the 2nos 3 bedroom flats each and 8 Bedroom in the building known as No.1, Moyo Agoro Street, Ifako Agege from September, 1989 till possession is given up.
3.A Declaration that any

1

purported execution carried out on the property of the claimant pursuant to any judgment in suit No.ID/306/75 is illegal, unconstitutional, null and void, Claimant having not been made a party to such suit.
4. An order setting aside any certificate of execution dated 25/8/89 (as regards the claimant) issued pursuant to illegal execution carried out on the claimant?s property at No.1 Moyo Street, Ifako Agege in purported execution of Judgment in Suit No, ID/306/75, a suit in which she was not a party.
5. A DECLARATION that any purported transfer of the claimant’s property by Rebecca Taiwo Olowo family to 2nd defendant in 1990 and/or from 2nd defendant to 1st defendant in 1992 is illegal, wrongful, unconstitutional, and same be declared null and void on the principle of nemo dat quod non habet.
6. The sum of N500,000.00 as aggravated damages for illegal execution carried out on claimants property.
7. AN ORDER of perpetual injunction Restraining the defendant?s, their servants, agents, privies, assigns, and/or any person(s) claiming through them, from further acts of trespass or possession on the claimants property known as No.1

2

Moyo Agoro Street, Ifako, Agege covered by Plan No.LAT/1002/76 dated 28/10/76.

In the course of trial, the Appellant called 3 witnesses and tendered 9 Exhibits marked as C1-C9, different types of documents to support the claim. The 1st Defendant testified for himself, tendered two exhibits marked as Exhibits D1 and D2 being receipt and survey plan No.JAS/LA/92. The 2nd Defendant called two witnesses, himself and one Madam Lijadu; he tendered 13 exhibits marked Exhibit D3 – D10B.

Learned Counsel filed closing addresses which were adopted and upon due consideration, the claim was dismissed thus this appeal.

The brief facts are that the Defendants in another suit- ID/306/75 got judgment against trespassers on a piece of land part of which is the land on which the Appellant built her house, the land in dispute. The Appellant was not a party to the suit. The judgment was later executed on the property owned by the Appellant without notice, she felt aggrieved and filed the action leading to this appeal. The learned trial judge dismissed the claims of the Appellant in its entirety.

?The Appellant?s brief settled by Stephen Yemi Kuyoro is

3

dated 18th day of February, 2016 and was filed on the same day. It sets out 7 issues for determination in the appeal as follows:
1. Whether it was right for the learned Trial judge to have wholly elevated the assertions in the pleading in suit No.ID/210/91 (Exhibit D10, D10A and D10B) as Evidence in this case (when the said assertion never went through the crucible of evidence and cross-examination in the original suit itself as the case itself was struck out) and adopted the said assertions in the aforesaid statement of claim as constituting an admission by the Appellant in making her findings that (the Appellant was a privy of Arowokoko family defendants in that case and that she was shopping for better title when she went to Obawole Family in this case on appeal), and if the answer is in the negative whether that decision is not perverse and whether it had not occasioned grave miscarriage of Justice. Grounds 1 and 4.
2. Whether there was any admissible evidence by the Defendant in the lower Court upon which the learned Trial Judge could have reached the conclusion that the land in dispute in this case is the same land litigated in suit

4