Mr. P. Ogunyanwo & 4 Ors. V. M/s Augusta Oluwole (2009)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an appeal against the judgment of Abeokuta High Court, Ogun State presided and delivered by G. A. Bakare, J on 14-10-1998.

The brief facts culminating in this appeal are as follows. This matter was instituted at the High Court by the Plaintiff, but now Respondent. By her 3rd amended statement of claim, she sought the following declarations and other reliefs against the Defendants but now Appellants as follows:-

“1. A declaration that the Plaintiff is entitled to a grant of certificate of occupancy over the piece of land situate, lying and being at Prison Street and more particularly described in survey plan No.LEL/C2000/62 dated 6th August, 1962.

2. The sum of N3,000,000.00 being special and general damages for the acts of trespass committed by the 1st and 2nd Defendants who illegally jumped on the said land and carried out building operation.
3. A declaration that the purported sale of portion of the said land in dispute for the 3rd and 4th Defendants in favour of the 1st and 2nd Defendants is void ab initio as there was no more title to pass to the 1st and 2nd Defendants in 1994 when the Plaintiff had bought same since 1932.
4. Perpetual injunction restraining the 4th Defendant, their agents, servants and privies from going upon the said land again.”

As stated by the learned trial judge in his judgment, the Respondent as plaintiff, called a total of 7 witnesses in support of her case and also tendered several exhibits to establish her case, while the present Appellants as Defendants, called also 7 witnesses and tendered numerous judgments with a view to establish that Joseph Oluguna was not their family head of Banmowu family in 1932. After reviewing the case of both parties and their addresses, the learned trial judge delivered on 14/10/1998 considered judgment in favour of the Respondent. Dissatisfied with the decision, appellants filed their respective notices of appeal containing 12 grounds which was dated 3/6/05 but filed on 6/6/05.

As allowed by rules of this court, parties filed their respective briefs including the Respondent’s preliminary objection which has been argued in her Respondents brief and reacted to by the Appellants in their reply brief and all were duly filed within stipulated period. From the 12 grounds of appeal, Appellants have distilled and formulated 5 issues that read as follows:-

“i. Whether the trial court was right to have relied on the survey plan No.LEL/C2000 of 6/8/62 tendered as Exhibit B to declare that the Plaintiff/Respondent was entitled to a grant of certificate of occupancy over the land bought by Plaintiffs father vide Exhibit A.

ii. Whether the vendor named in Exhibit A, namely, Joseph Oluguna, was at all material times relevant to the making of the purchase agreement (Exhibit A), the Banmowu family head.

iii. Whether Banmowu family or Banmowu family head had in 1932 passed any title in the disputed land to Plaintiff/Respondents’ father which can be supported by long possession, laches and acquiescence.

iv. Was the trial court right in law when it held that 1st and 2nd Defendants/Appellants were trespassers on the land in dispute?

v. Was the trial judge right in his decision when he awarded N300,000.00 special damages against 1st and 2nd Defendants/Appellants?”

In opposing the appeal, learned counsel for the Respondent has raised 2 issues for determination and they read thus:-

“1. Whether the sale of the land in dispute to the Respondent’s father by Joseph Oluguna was proper and valid and conveyed any title on him to which the Respondent could succeed.

2. Whether the award of N300,000.00 special damages against the Defendants/Appellants was not in the circumstances of the case right?”

Learned counsel for the Respondent had earlier on filed and served the Appellants a Notice of preliminary objection against the competence of Appellant’s grounds 1, 2 and 3 from which the first issue in the Appellant’s brief of argument is distilled on the basis that the issue does not arise from the judgment of the trial court. In other words, the respondent is saying that the said 3 grounds raise issues which were not in issue or controversy before the trial judge on which his Lordship could have reached a decision. To support her contention, the Respondent referred and relied on the following decided Supreme Court cases, namely TINUBU VS. I.M.B. (2001) 16 NWLR (pt.740) 670; HONIKA SAWMIL NIG. LTD. VS. HOLF (1994) 2 NWLR (pt.326) 252; ADENIE VS. OLUDE (2002) 18 NWLR (pt.799) 413, 433 – 4. The Respondent has contended that a careful examination of grounds 1, 2 and 3 of the Appellants notice of appeal will show that the ground raise the issue of the identity of the land in dispute, and then submitted that the identity of the land was never in issue before the trial court, and that the Defendants now Appellants never denied knowledge of the identity of the land especially as their witness, DW2 who was the 3rd Defendant at page 119 of the record, had clearly stated on oath that, -” I know the land in dispute. It is situated at Prison Street, Sanyindo, Sagamu.” The Respondent has further contended in her preliminary objection that the Appellants at the trial court, had never been misled as to the identity or the location of the land in dispute. That it is trite law that before the identity of the land in dispute can be held to be in issue as the Appellants would want to raise In their grounds 1, 2 and 3, the Defendants/Appellants must have been denied the knowledge of the location of the land in their pleadings in defence, and that in the instant appeal, the Appellants did not in their statement of defence make an issue on the identity of the land. The Respondent has urged this court to allow the preliminary objection and strike out grounds 1, 2 and 3 of the Appellants notice of appeal along with the first issue argued by the Appellants.