Alhaji Moshood Odutola & Ors v. Ademola Adeniran Fidipote & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GABRIEL OMONIYI KOLAWOLE, JCA (Delivering the leading judgment)

The 1st appellant initiated the suit; the precursor to the instant appeal, in the lower court against the 1st respondent, it was commenced vide the writ of summons and a statement of claim dated and filed on 25th September, 2013, it was later amended and filed on 2nd July, 2015, as contained in pages 236 – 260 of the record of appeal, the record.

In the said statement of claim, the relief sought was with respect to the following:

1. A declaration that the claimants, for and on behalf of the other Children and Beneficiaries of the Estate of Alhaji Jimoh Akintola Odutola, is entitled to Statutory Right of Occupancy and an uninterrupted enjoyment of the piece or parcel of land situate at West of Folagbade Street, Ijebu-Ode, now known and referred to as Molipa Area, Ijebu-Ode, Ogun State, which is more particularly described and delineated in Survey Plan No. A 56/1939 dated 13/9/68 drawn by Akinbogun, a Licensed Surveyor and marked by Pillar No: T609; T615; T614; T877; T878; T879; T880; T881; T882; T883; T884; T885; T886; T887; T888; T889; T890 and covered by Deed of Conveyance dated 29th day of June, 1952 and registered as No. 32 at page 32 in volume 161 of the Lands Registry in the office at Ibadan now kept in Abeokuta, Ogun State.
2. The sum of N5, 000, 000.00 (five million naira) against the defendants for his acts of trespass on the aforesaid parcel of land.
3. An order of perpetual injunction restraining the defendants, their agents, servants, privies and assigns from committing further acts of trespass on the land.
4. The sum of N2, 000, 000.00 (two million naira) against the defendants being the costs of this suit.

The respondents amended statement of defence was dated and filed on 10th September, 2015 and is reproduced in pages 261-271 of the record of appeal.

Both parties in the suit filed their respective pleadings and exchanged same accordingly after which the trial commenced on 10th April, 2017.

At the conclusion of the trial in the lower court on 5th July, 2017, directed both parties were directed to file their addresses and same were adopted. The lower court thereafter adjourned for judgment.

In its considered judgment delivered on 13th December, 2017 and reproduced in pages 463-474 of the record, the trial Judge found that the claim of the claimants failed in totality, and proceeded to dismiss it.

The appellants were aggrieved and initiated the instant appeal, when they filed the notice of appeal on 11th January, 2018. The eight (8) grounds upon which the appeal was premised are as contained in pages 475-482 of the record of appeal.

The appellant further filed the appellants brief of argument same being dated and filed on 7th December, 2018; wherein the appellants distilled the following issues for determination in the appeal, the issues are;

1. Whether, on the state of pleadings in this suit, the respondents can be said to have joined issues with the appellants in this suit as to place any burden of proof on the appellants.
2. If issue 1 is answered in the affirmative, whether the appellants have established their case as required by law and are entitled to the relief’s sought
3. Whether the learned trial Judge rightly awarded damages in favour of the respondents who had no claim before the court.

The respondents, on their part, filed the respondents brief of argument dated 17th May, 2022 and filed on 24th May, 2022, with two (2) issues for determination distilled therein, to wit;

1. Whether the respondents, on the face on the pleadings, has joined issues with the appellants in this suit as to place the burden of proof in this matter on the appellants
2. Whether on the face of evidence tendered in this matter, the appellants can succeed in this appeal.

Parties argument on the issues for determination in the appeal

The argument canvassed by the appellants on issue 1, is to the effect that the respondents failed to join issue with the appellants with respect to the claim of the appellants, it was contended that the respondents rather admitted that their land was different from the appellants land as described in their claim.

Appellants counsel cited the decisions in Adekeye & Ors v. Adesina & Ors (2011) 20 WRN 1; (2010) 12 S.C (Pt. I) 1 at 28, Alli v. Aleshinloye (2000) 16 WRN 1; (2000) FWLR 2610 at 2631-2632 and submitted that the lower court ought to have acted on the unchallenged pleading of the appellants, stating that the respondents are not permitted to derogate from their pleadings.

It was argued that the appellants, as the claimants in the lower court, were able to establish their title to the land in dispute, when the respondents case supports the appellants claim for title. He cited, in support of the assertion, the decisions in Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252, Shittu v. Fashawe (2005) 5 S.C (Pt. II) 107, Ajiboye v. Ishola (2006) 39 WRN 1; (2006) 6 – 7 S.C 1 at 17.